The Civil High Court has dismissed a case filed by businessman John Samisoni against Corporate Management Services PTE Limited, also known as Hot Bread Kitchen, as well as against the Minister for Employment, the Minister for Health, and the Office of the Attorney-General.
This case was reviewed by High Court Judge Justice Dane Tuiqereqere earlier this month. Justice Tuiqereqere acknowledged that the case raises significant constitutional issues. He stated, “It was agreed by both parties that if this Court finds the 2021 Regulations to be lawful, then Mr. Samisoni’s motion will not hold. I recently evaluated the legality of the 2021 Regulations in Fijian Teachers Association v State [2024] FJHC 431 (15 July 2024) and concluded they were lawful. Even though I recognized that the two constitutional rights highlighted by the FTA were limited by these regulations, I ultimately determined that they were appropriately enacted by the Minister under Section 62 of the Health and Safety at Work Act 1996, and were justified and proportionate.”
Background details reveal that Samisoni lost his job in August 2021 after he declined to receive the COVID-19 vaccination. His employer terminated his employment in line with Section 52F of the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021.
Samisoni’s lawsuit was grounded in his assertion that the 2021 Regulations are invalid and exceed legal authority. The other responding parties sought to have the case dismissed.
Despite several procedural issues raised by both parties, the key question to resolve is whether the 2021 Regulations are lawful. At that time, Samisoni served as a shareholder and the Managing Director of the employer in question. The 2021 Regulations, effective from 8 July 2021, significantly impacted his employment.
These regulations mandated that no worker or employer could access the workplace unless vaccinated. Workers needed to receive their first vaccination by 15 August 2021 and their second by 1 November 2021. Those unvaccinated were barred from the workplace after 1 August 2021.
Samisoni complied with the regulations and did not enter the workplace after the mandated date. He communicated his decision not to be vaccinated to his employer. In an affidavit, he expressed his concerns regarding the vaccine after conducting his research. On 13 August 2021, the first respondent informed him that the regulations required vaccination for workplace entry and that, due to his refusal, his employment was terminated effective 15 August 2021.
Justice Tuiqereqere remarked that the second, third, and fourth respondents correctly argued that a constitutional redress action under Section 44(1) is only applicable for violations of provisions within Chapter 2 of the Constitution.
The court noted that Samisoni failed to file his motion within the necessary 60-day timeframe from when the issue originally arose. Consequently, his case could not succeed as he had an alternative remedy through an employment grievance process outlined in the Employment Relations Act 2007.
Justice Tuiqereqere mentioned that Samisoni contends the respondents’ summons to strike out his motion under Order 0.18 of the High Court Rules 1988 is flawed.