News / National
HIV+ nurse challenges 'unconstitutional' dismissal
12 Feb 2015 at 11:59hrs | Views
An HIV-positive nurse who was relieved of her duties by St Anne's Hospital for failure to disclose her health condition has challenged the dismissal as unconstitutional.
The woman, whose name has been withheld for professional reasons, said the forced disclosure of her health status was a violation of her constitutional right to privacy and dignity.
In the application, the woman cited the hospital and its parent company Caps Holdings Limited; and the National Employment Council, as respondents.
The matter was heard yesterday before the full Constitutional Court bench.
However, judges told the woman's lawyer Fadzai Mahere that the current proceedings were similar to a case before the Labour Court.
"You can't have double proceedings in the same matter," deputy chief justice Luke Malaba said.
Chief Justice Godfrey Chidyausiku advised Mahere that there was no need to have parallel proceedings taking place on the same matter, adding that this would result in two conflicting decisions.
However, Mahere said there was nothing that barred her client from directly making a constitutional application, despite the Labour Court proceedings.
But judges said it was not the function of the Constitutional Court to undermine inferior courts.
Chidyausiku went on to reserve ruling on the preliminary point that was raised. He said the matter would only proceed on merits if the court was to rule in favour of the woman.
The woman said that she was diagnosed with HIV in 2003, during the time she was still working for Avenues Clinic, before she resigned on health grounds in 2006.
She told the court that condition improved in 2010, before successfully applying for a job at St Anne's Hospital.
According to court papers, the woman later successfully applied for a job at Trauma Centre, before tendering her resignation to St Anne's Hospital.
However, her immediate supervisors persuaded her not to leave, leading to her withdrawing the resignation.
She was surprised in August 2012 when the hospital's human resources manager advised her that the withdrawal of her resignation had been refused.
Her employment was only restored following extensive correspondence between her and her superiors.
The court heard that she was later served with a notice of investigation in July 2013. The notice alleged that the woman had failed to disclose aspects pertaining to her health condition, leading to her suspension from employment.
"Accordingly, the conduct of the 1st respondent (St Anne's) in compelling me to disclose my health condition has not only resulted in me losing my employment but has subjected me to stigma, discrimination and humiliation at the hands of my former workmates…," she argued.
She asked the court to declare the forced disclosure of her health condition unconstitutional. She further demanded $30 000 as constitutional damages, which she said was compensation for the violation of her privacy, dignity and the inhuman and degrading treatment she suffered.
The woman, whose name has been withheld for professional reasons, said the forced disclosure of her health status was a violation of her constitutional right to privacy and dignity.
In the application, the woman cited the hospital and its parent company Caps Holdings Limited; and the National Employment Council, as respondents.
The matter was heard yesterday before the full Constitutional Court bench.
However, judges told the woman's lawyer Fadzai Mahere that the current proceedings were similar to a case before the Labour Court.
"You can't have double proceedings in the same matter," deputy chief justice Luke Malaba said.
Chief Justice Godfrey Chidyausiku advised Mahere that there was no need to have parallel proceedings taking place on the same matter, adding that this would result in two conflicting decisions.
However, Mahere said there was nothing that barred her client from directly making a constitutional application, despite the Labour Court proceedings.
But judges said it was not the function of the Constitutional Court to undermine inferior courts.
Chidyausiku went on to reserve ruling on the preliminary point that was raised. He said the matter would only proceed on merits if the court was to rule in favour of the woman.
The woman said that she was diagnosed with HIV in 2003, during the time she was still working for Avenues Clinic, before she resigned on health grounds in 2006.
She told the court that condition improved in 2010, before successfully applying for a job at St Anne's Hospital.
According to court papers, the woman later successfully applied for a job at Trauma Centre, before tendering her resignation to St Anne's Hospital.
However, her immediate supervisors persuaded her not to leave, leading to her withdrawing the resignation.
She was surprised in August 2012 when the hospital's human resources manager advised her that the withdrawal of her resignation had been refused.
Her employment was only restored following extensive correspondence between her and her superiors.
The court heard that she was later served with a notice of investigation in July 2013. The notice alleged that the woman had failed to disclose aspects pertaining to her health condition, leading to her suspension from employment.
"Accordingly, the conduct of the 1st respondent (St Anne's) in compelling me to disclose my health condition has not only resulted in me losing my employment but has subjected me to stigma, discrimination and humiliation at the hands of my former workmates…," she argued.
She asked the court to declare the forced disclosure of her health condition unconstitutional. She further demanded $30 000 as constitutional damages, which she said was compensation for the violation of her privacy, dignity and the inhuman and degrading treatment she suffered.
Source - dailynews
