HIV+ nurse fired

Daniel Nemukuyu Senior Court Reporter
A Harare nurse, who failed to disclose her HIV status during her recruitment, has been left jobless after her employer, St Anne’s Hospital discovered that she was indeed positive after serving the institution for two years.

The woman was diagnosed with HIV in 2003 while she was employed at Avenues Clinic in Harare. She resigned in 2006 due to ill health before reapplying for another job at St Anne’s Hospital in the capital upon recovery. When she applied for the new job at St Anne’s Hospital in 2010, she was asked to fill in the application forms stating whether or not she was suffering from any serious illness, including HIV.

The matter came to light when the nurse suffered a stroke in 2012 and St Anne’s Hospital ordered an investigation that revealed that she had either supplied false information or omitted relevant information about her health. A disciplinary hearing found her guilty of either supplying false information or omitting relevant information when she filled in her medical examination forms. She successfully appealed to the National Employment Council’s Appeals Committee and an order for reinstatement was issued.

St Anne’s Hospital challenged the NEC’s decision at the Labour Court.

While the appeal was pending, the woman filed an application directly at the Constitutional Court.

In the constitutional challenge, the woman listed St Anne’s Hospital, Caps Holdings Limited and the NEC for Welfare and Educational Institutions as respondents. In the Constitutional Court challenge, the woman argued that her right to privacy in terms of Section 57(e) of the Constitution had been violated by St Anne’s Hospital.

She also argued her rights to dignity and protection against inhuman and degrading treatment were trampled upon.

Chief Justice Luke Malaba, sitting with eight other judges of the Apex Court, threw out the application, saying no rights had been violated.

“It is important to note that the purpose of the disciplinary proceedings was not to compel the applicant to reveal her health condition,” ruled the court.

“The purpose was to determine the question of whether she had given false information when she answered in the negative the question whether she had suffered from any serious illness. If she was honest, she needed only to answer the question in the affirmative.”

The court also found that the woman used the wrong procedure in approaching the Constitutional Court.

“If a question of violation of a fundamental right arises in proceedings before a subordinate court, the correct procedure for bringing the matter to the Constitutional Court is the one set out in Section 175 (4) of the Constitution,” said the court.

“The applicant ignored the procedure she was obliged to follow if she wanted to have the question of the infringement of her fundamental rights brought to the Constitutional Court for determination.”

Advocate Fadzai Mahere represented the woman in the constitutional challenge, while Mr Caleb Mucheche of Matsikidze & Mucheche Legal Practitioners appeared for the NEC.

Pin It
  • kazukuru

    Why are lawyers allowed to mislead and take clients for a ride. Surely they knew what the learned Judge is stating in this matter. Lawyers are there to advise clients on the legal and correct course of action to be pursued. I feel the public should have recourse to sue these misleading and misdirecting lawyers. Is there an organisation called Law Society to protect and regulate on matters incidental to? Wake up LSZ. Thank you Judge for revealing the truth abt these fake and untrainable Zim lawyers.

    • Quiet Diplomat

      ehe. the fault lays with the advocate representing the woman.

  • Tafirenyika

    The woman engaged a wrong and incompetent lawyer. Fadzai Spinster Mahere cannot win any case. At best, she is a human rights noise maker!

    • TestCase TestCase

      Fadzai “spinster” Mahere, really Tafi? Apa wawanza.

  • MusoroWeGomo93

    Mahere with all the noise she makes can’t making such rookie errors!

  • Hombarume

    The nurse’s health status is private.
    Why would one want to know the status of another.

    • Ray Mbada

      It is a condition of employment because after all, the Human Resources needs that information to enable them to run the welfare of employees in a rational manner. If the issue had not come out today, the same employee was going to complain after being treated unfairly given her condition.

    • Humba Makombe

      ….”It is important to note that the purpose of the disciplinary proceedings was not to compel the applicant to reveal her health condition,” ruled the court.

      “The purpose was to determine the question of whether she had given false information when she answered in the negative the question whether she had suffered from any serious illness. If she was honest, she needed only to answer the question in the affirmative”…..tati tikubatsire zvimwe wangojamba kuenda kuma comments.

    • shelz

      The employer has the right to know whether one is suffering from a serious illness that may cause further harm to their health if given certain duties as well has cost the employer in the event of death in service

      In such a case , the employee acted in bad faith by supplying wrong and misleading information.

      It is not very clear but from what i inferred , i found out that the nurses duties were heavy on her and she suffered a stroke. Upon examination , it was noted that the employee had a serious illness/condition for a long time , the sickness that she deliberately not disclosed to the employer.

      For the record, the papers didn’t ask the nurse to disclose her HIV status , but to affirm in the Positive or Negative on the question of whether she had any serious illness that may impair her ability to carry out any nursing duties in the future.

    • joseph mutasa

      So that she does not pass per virus to others. Her status is private if she does not seek employment only.

      The public has the right to know that the person who is handling their bleeding wounds is positive.. so that they wear condoms or refuse to be attended by such persons.

    • sky

      If the co. pays for medical aid then you need to disclose such details

  • Joy

    Mahere, empty vessels make a lot of noise

  • Ray Mbada

    This is what happens when corruption takes control to replace formal rules and regulations. People then will have no respect for the law and challenge or blame it for questioning some false move. The form (medical form) is very clear on that and, if she thought or knew that she had a right to employment or what ever fair treatment according to the constitution as quoted, why did she not disclose her status? Employment is a life engagement, a contract looks also into our health problems and assist where ever possible but if one decides to go secrecy on that, then there is no relationship at all. In-fact, this is criminal!

  • eish

    if she was generous in dishing out her goodies then nothing we can do about it as she could have ended up being naughty to patients but if she was humble then it pains and the whole case need to be revisited.

    • Tsuro

      The headline is misleading. It seems to me that it is actually the employee who out of desperation tried to use her HIV status as defense. Discrimination on grounds of HIV status is an offense in Zimbabwe and there is actually a statutory instrument criminalizing it. The issue is not about her HIV status.

      • Loud Speaker

        The issue is not about her HIV status.
        **************************************************
        What is it then? And surely in the health sector,an employee with a potentially communicable disease is a potential risk to those under his/her care. A risk that ought to be disclosed to whoever is responsible for risk assessments?

  • s shumba

    There is a question that follows a positive answer. “explain” or “give more details”

  • tigere

    Hey, nyaya ndeyekureva nhema kwaakaita mukadzi uyu

  • Loud Speaker

    Eh! Don’t they have medical check ups before employing anyone in critical sectors?….Obviously not hey.

  • Awilo

    Fadzai Mahere is a joke. And she wants to be trusted in politics.