HIV+ nurse challenges 'unconstitutional' sacking

HARARE - 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.


Comments (5)

I think the hospital was wrong in sacking this nurse. If the hospital was worried that she would spread the HIV to patients (which is very unlikely) they should have allocated her to Non Exposure Prone Procedures (EPP). In countries like the UK one's HIV status has been removed as a prerequisite to practice midwifery. Chances of passing HIV from a nurse to patients etc are very very remote.

Matombo - 12 February 2015

Tell these idiots baba

pompano - 13 February 2015

The hospital management is a bunch of fools...

Baba - 13 February 2015

The hospital is practically, or is it, technically, right. You know, if you are a nurse you really know that sometimes nurses DO have sex with patients, especially during the night. Most nurses are whores, as you might be aware of. However, academically and professionally the hospital is wrong.

Mashonaland Dickmarsh - 13 February 2015

Please Mai Doctor Grace Mugabe, you are our saviour. Why are NGOs paying people money for abortions. Population Services Zimbabwe (PSZ) and Population International Zimbabwe (PSI-Z) are paying people money for carrying abortions. They have curtail of doctors they are using and even themselves (NGOs) they are giving people drugs free on the pretex that they are free contraceptives yet they are drugs for abortions. Why are they operating independently? Ministry of Health and Child Care are board members of these NGOs. VaMudede muripiko please

Able - 13 February 2015

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