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.