The Supreme Court yesterday told five employees of Cari-Med Group that the company’s COVID-19 vaccination policy did not breach their constitutional rights and instructed the employees to seek contractual remedies to their claim.

The five claimants — Kadian Parkins, Tashana Davis, Sherine Hemmings, Racquel Robertson, and Kennesha Dale — are employed to Kirk-FP Limited, a subsidiary of Cari-Med Group Limited, which are named as the second and first defendant, respectively.

Court documents state that on September 20, 2021, Cari-Med Group issued a written COVID-19 vaccination policy for all companies within its group to be implemented on October 4, 2021. The policy requires that all employees present proof of vaccination from COVID-19 or such other diseases as may be designated by Cari-Med by October 4, 2021 unless a reasonable accommodation is approved.

The policy further states that employees who fail to comply with its terms will be required to present a negative polymerase chain reaction test result every two weeks or 14 calendar days at the employee’s expense from a Ministry of Health and Wellness-approved laboratory for COVID-19 testing.

On October 19, 2021 the five employees took the companies to court, claiming a breach and/or anticipatory breach of their respective employment contracts and violation of their constitutional rights under sections 13(3)(a), (b),(g) and O)(ii) and (iii) of the Constitution of Jamaica.

The Supreme Court stated that the matter began as an application for an interim injunction filed by the employees. However, the court was later presented with a second application, filed by the defendants, for the court to decline to grant constitutional redress pursuant to section 19(4) of the constitution and to exclude from determination issues involving breaches of the constitution.

The companies also asked the court to strike out the declarations sought in the claim pursuant to the Charter of Fundamental Rights and Freedoms.

Basically, the company argued that there are alternative remedies available to the claimants and, as a consequence, the court should decline to exercise its powers in regards to the constitutional claim.

The companies also submitted that the true nature of the alleged constitutional contravention is that the claimants have violated their right to attend work and receive pay without complying with the COVID-19 vaccination policy.

The policy was developed after consultation at a joint session of the Jamaica Confederation of Trade Unions, the Private Sector Organisation of Jamaica, the Jamaica Manufacturers and Exporters Association, the Jamaica Employers’ Federation, and the Jamaica Chamber of Commerce.

That working group produced a document to advise businesses on operations during the novel coronavirus pandemic.

The employees turned up for work on October 11, 2021 and were barred from entering the premises. This, they submitted, caused them a great deal of shame and embarrassment in front of their peers.

They were paid to work from home in September, but they were not paid for October as the company said they had not earned their salaries because they failed to come to work.

The claimants contended that they have families and expenses and the company is withholding their salaries. However, the company argued that their contracts stipulate that they are to work and they were not at work and, as such, did not earn a salary for the period.

In its 106-page ruling, the court said it views the claimants’ position on the application “as an action in contract clad in the black tie of constitutional redress and may be viewed as an abuse falling squarely within the warnings of the Privy Council in the trilogy of Trinidadian authorities”.

The court dismissed the constitutional aspects of the claim as an abuse of process and said it refuses to make a declaration that the constitutional rights of the claimants have been infringed.

The court found that there is adequate relief to be had in the law of contract and the claimants can seek remedies in that context.

Constitutional relief having been refused, what remained was a dispute between employer and employee concerning the employment contract and that issue is to be tried if it cannot be resolved by the parties themselves.

The court also awarded costs of the application to the defendants.