Constitutional Court reserves ruling on HIV-positive fired nurse

The Constitutional Court has reserved ruling in a case in which an HIV-positive nurse is suing her employer for allegedly violating her privacy and terminating her contract on the grounds of her status.

The single mother of four children claims that her employer, St Annes Hospital in Harare, unlawfully forced her to disclose her HIV-status before sacking her from employment.

She argues that her employer's conduct violated her constitutional rights to privacy and not to have her health status disclosed, to human dignity, and to freedom from inhuman and degrading treatment.

But the full bench of the Constitutional Court queried the logic of bringing the case to the court when there was a pending case at the Labour Court.

The nine-judge panel was of the view that the whole application arose from the labour case and queried Advocate Fadzayi Mahere, who is acting for the woman, why she did not ask the Labour Court to refer the matter to the apex court in the land.

Asked Chief Justice Godfrey Chidyausiku: "Why are you bringing this case here when the matter is still pending at the Labour Court?"

Adv Mahere said the matter was brought to the court in terms of Section 175 (4) of the new Constitution of Zimbabwe, arguing it allows a person to bring such an application to the Constitutional Court if one feels an infringement of rights has been committed against him or her.

"It isn't the function of this court to undermine the inferior courts," said Chief Justice Chidyausiku.

But Adv Mahere said the judges could hear the case on merits, insisting that there was no legal impediment stopping her client from approaching the Constitutional Court seeking the protection of the law where her rights were infringed.

She asked the court to take a robust approach and dispose of the matter arguing that the case would still end up in the apex court.

Adv Mahere further argued that the relief sought in the Labour Court was different from the one sought in the Constitutional Court.

In the Constitutional Court, Adv Mahere said, they were seeking constitutional damages arising from discrimination against an HIV-positive woman.

After hearing the arguments on the preliminary issues the court had raised, the Chief Justice reserved ruling to a later date.

The woman had worked as a nurse at St Anne's Hospital since September 2010, where she had kept her HIV-status private as she is entitled to by law.

A doctor did a medical examination on her before she started working and declared her fit to work. Following work-related stress in 2012, she suffered a stroke.

She was declared healthy by her doctor to return to work in mid-2013.

When she returned, her employer accused her of breaching the code of conduct by failing to disclose her HIV status.

She was suspended without pay and subjected to disciplinary proceedings.

During the disciplinary proceedings, the woman alleged that her employer's representative forced her to disclose her HIV-status.

The chairperson of the disciplinary committee decided that she had violated the code of conduct.

She was then fired.

The woman appealed the decision to an appeals committee.

In January last year, the appeals committee overturned the decision.

They found that she had not done anything wrong and ordered that she be reinstated with full pay and benefits.

The hospital appealed at the Labour Court and the matter is still pending.

Women and Law in Southern Africa Research and Education Trust (WLSA – Zimbabwe) is assisting the woman to prosecute her case.

She wants the court to declare the code of conduct unconstitutional because it punishes HIV-positive people for failing to disclose their HIV-status even though they are protected from this by the Constitution and the Labour Regulations.