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In a landmark ruling that could have implications for the next pandemic, the Employment Rights Tribunal (ERT) on Thursday found that oil company Rubis discriminated against unvaccinated employees during the COVID-19 public health crisis by insisting they undergo “onerous and unreasonable” weekly testing.
But the tribunal, which ordered no compensation for the complainant worker Whyvonna Wiggins-Hoyte, a Rubis vendor administrator/buyer, also found that there was no evidence that the firm had insisted on mandatory vaccination against the virus, as one of its employees had claimed.
Delivering its decision via Zoom in the case brought against Rubis Caribbean SRL, ERT deputy chair Kathy Hamblin noted that the decision appeared “moot” and “academic” in nature since it seemed that the pandemic had ended and the conditions that formed the basis of the complaint had now changed.
Significantly, the case was the first test of the Employment (Prevention of Discrimination) Act (E(PoD)A), passed in 2020 – the year of the pandemic’s outbreak – which put the complaint under the tribunal’s jurisdiction.
The three-member panel of Hamblin, Frederick Forde and Deighton Marshall found that Rubis’ stated policy that all unvaccinated employees must be subjected to weekly testing at the employees’ expense, was not backed by any “lawful authority” to make such a stipulation a condition of continued employment.
The tribunal concluded that Wiggins-Hoyte’s complaint of discrimination was “well-founded” and that this was clear from the warning and suspension letters issued to her which made testing a condition of her keeping her job.
“The respondent’s policy, which required the claimant to present a COVID-19 vaccination certificate or a weekly negative COVID-19 PCR test result to work at its office was discriminatory and contrary to Section 6 of the E(PoD)A,” the tribunal declared.
“Counsel for the respondent [Rubis] informed the tribunal that the policy is no longer enforced by the respondent. Nevertheless, the tribunal warns the respondent, ex abundanti cautela [out of an abundance of caution] that in the absence of a mandate from the State, the respondent shall not reintroduce, revive, reinstate or otherwise implement or enforce the said policy or any variation of that policy.”
Wiggins-Hoyte had sought the ERT’s “interpretation or guidance” to say to the employer they had no such authority. She also sought “any other remedy the tribunal deems fit and cost”, which was denied.
She was represented at the hearing by General Secretary of the Unity Workers’ Union Caswell Franklyn.
During her oral arguments before the tribunal, Wiggins-Hoyte challenged the existence of COVID-19 – which up to December 22 had led to the deaths of 648 people in Barbados and infected more than 110 298, requiring many of them to be hospitalised at a purpose-built quarantine and treatment facility.
“I do not believe COVID exists. According to me, it is not a medical condition. SARS is a flu virus. It manifests itself in different ways,” she said.
The Rubis staff had been issued a set of guidelines on September 13, 2021, via an email from Chief Executive Officer Mauricio Nicholls, which mandated that “only fully vaccinated employees shall have the option to work at the office without requiring approval”.
He also suggested that if an unvaccinated employee failed to request approval to work at the office or work location and did not inform their supervisor that they were not vaccinated, the employee would be subject to disciplinary action.
In December 2021, the CEO further informed the staff via email that from January 10, 2022, they would need to work from their assigned Rubis location at least three days a week.
The tribunal revealed in its decision that the claimant Wiggins-Hoyte, on January 3, requested to work from home and was granted permission to do so. She was also reminded that a negative PCR test would be required for her to work from Rubis on the other two days.
In defiance of the company’s directive, Wiggins-Hoyte worked from her desk on January 11 and was eventually ordered to leave the office. She was issued with a warning letter on January 14 which threatened further disciplinary action and possible dismissal for non-compliance.
Her complaint of discrimination was made to the Chief Labour Officer on January 17.
On January 20, when the claimant turned up for work without proof of a test result, she was ordered to leave and suspended without pay for seven
days.
The ERT noted that while the matter was before the Labour Department,, Wiggins-Hoyte applied to the company for permission to work remotely and was granted such permission to work from home until March 31.
The tribunal reported that Rubis’ Human Resources Manager Delores Batson indicated that Wiggins-Hoyte returned to work on September 5, 2022, “and has been allowed to work at her workplace location without any interruption since. Prior to that return, the claimant continued to work remotely and at all times received her usual remuneration.”
The ERT also indicated in its written decision that by the time the case was heard, the testing requirement was no longer in force, Wiggins-Hoyte’s seven-day suspension had been rescinded, and the employee had received her full pay for that period.
The tribunal said: “A mutually acceptable accommodation had been reached between the parties, whereby the respondent permitted the claimant to work full-time from her home before returning to the office without restrictions in September 2022. She has not been subjected to any further disciplinary action. The claimant also confirmed that she has suffered no reduction in emoluments or status and she remains in the employ of the respondent. In the circumstances, the tribunal is satisfied that the claimant was made whole.”
Sherica Mohammed-Cumberbatch of Carrington & Sealy attorneys-at-Law appeared for Rubis in the matter.
(SP)
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