MALABA
DCJ: The
applicant approached this Court in terms of section 85(1)(a) of the
Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the
Constitution”), alleging that the respondents infringed the
following of her fundamental rights:
(i)
the right to dignity;
(ii)
the right not to be subjected to physical or psychological
torture or to cruel, inhuman or degrading treatment;
and
(iii)
the right not to have a health condition disclosed.
The
allegation was that these rights, which are enshrined in the
Constitution, were violated when the first respondent subjected the
applicant to disciplinary proceedings for alleged misconduct arising
from her alleged failure to disclose her HIV status in a form she
completed when applying for employment with the first respondent.
The
allegation was that the disciplinary proceedings were based on a
failure to complete a form that compelled her to disclose the
condition of her health.
She
alleged that, by subjecting her to the disciplinary proceedings by
which she was found guilty of the misconduct charged resulting in her
dismissal from employment, the first respondent infringed her rights.
The
applicant seeks an order in the following terms:
“(a)
The first respondent's conduct in requiring that the applicant
discloses her health condition is declared unconstitutional and in
breach of sections 57(e); 51 and 53 of the Constitution.
(b)
The disciplinary proceedings conducted by the first respondent
relating to the applicant's failure to disclose her health
condition are accordingly set aside. Any appeal in relation to the
said disciplinary proceedings is permanently stayed.
(c)
Section 8 of Schedule 4 of the Employment Code of Conduct for the NEC
for Welfare and Educational Institutions, which penalises a failure
by an employee to disclose their medical status when undergoing a
medical examination at the instance of the employer, is hereby
declared unconstitutional.
(d)
The first respondent is hereby ordered to reinstate the applicant to
the post of ward manager, or alternatively to pay her damages as
quantified by the Labour Court for unfair dismissal.
(e)
The first respondent and the second respondent are hereby ordered to
pay the applicant $30,000 as constitutional damages to compensate her
for the violation of her privacy and dignity and for causing the
applicant to suffer inhuman and degrading treatment.
(f)
The first respondent is hereby ordered to pay costs of suit on a
legal practitioner and client scale.”
The
facts which gave rise to the application are these:
The
applicant was diagnosed with Human Immune-Deficiency Virus (HIV) in
2003 while she was employed at the Avenues Clinic as a nurse. She
later resigned in 2006 when her health condition deteriorated. Her
health condition later improved and in 2010 she applied for a job
with the first respondent. She was interviewed for a post of a
general nurse and successfully passed the interview. The applicant
was required to complete a medical examination form before commencing
employment.
The
medical examination form required her to indicate whether she had
suffered from any serious illness or injury. She indicated that she
had not suffered from any serious illness. She also failed to
disclose that she had once retired from her previous employment on
medical grounds.
The
applicant proceeded to enter into a contract of employment with the
first respondent as a general nurse.
The
applicant was again interviewed in March 2011. She succeeded and was
appointed to the post of ward manager.
In
September 2012 the applicant suffered a stroke and went on sick leave
from 21 September 2012. When the applicant resumed work on 2 December
2012 she was referred to one Dr Ngwende, who advised the first
respondent's human resources manager that she had made some
progress and could resume her duties. The doctor recommended that the
applicant should perform light duties.
The
first respondent was not pleased with the health condition of the
applicant and served her with an investigation notice, in which it
alleged that the applicant had given false information when she
completed the medical examination form.
The
applicant was suspended from employment on allegations that she
contravened Schedule 4(8) of the Employment Code of Conduct for the
National Employment Council for the Welfare and Educational
Institutions, (“the Code of Conduct”) which provides that
supplying false information or knowingly omitting relevant
information in an application for employment or when undergoing a
medical examination is an act of misconduct.
The
applicant was charged with that misconduct, it being alleged that she
had supplied false information or knowingly omitted relevant
information when she completed the medical examination form, in that
she said she had not suffered from any serious illness when she knew
that the statement was false.
A
disciplinary hearing was conducted and the applicant was found guilty
as charged. The disciplinary committee found that the applicant
committed an act of dishonesty, which is a serious offence as the
relationship between an employer and employee is based on honesty and
trust.
A
penalty of dismissal was imposed.
Aggrieved
by the decision of the disciplinary committee, the applicant appealed
to the third respondent's appeals committee (“the NEC Appeals
Committee”). The appeal was allowed. The decision of the first
respondent's disciplinary hearing committee was set aside and
substituted with an order that the applicant be reinstated to her
former position without loss of salary and benefits from the date of
dismissal.
The
first respondent noted an appeal against the decision of the NEC
Appeals Committee to the Labour Court. At the same time, the
applicant brought an application for review of the proceedings of the
first respondent's disciplinary committee before the Labour Court.
Whilst
both matters were pending before the Labour Court, the applicant made
this application in terms of section 85(1) of the Constitution.
The
applicant alleges that the respondents have breached her right to
privacy as enshrined in section 57(e) of the Constitution, which
provides that:
“Every
person has the right to privacy, which includes the right not to have
—
(a)
– (d)…;
(e)
their health condition disclosed”.
The
applicant further alleges that her right to dignity (section 51 of
the Constitution) and her right to protection against inhuman and
degrading treatment (section 53 of the Constitution) were violated by
the first respondent's conduct in conducting the disciplinary
proceedings.
It
was the applicant's submission that the disciplinary proceedings
were designed to compel her to disclose her medical condition, in
particular her HIV status.
A
preliminary point was raised as to whether the application was
properly before the Court, considering that there was a pending
appeal and an application for review before the Labour Court.
Counsel
for the applicant, Ms Mahere,
submitted that what was in the Labour Court was an appeal against the
decision of the third respondent. She also submitted that there was
nothing constitutional pending before the Labour Court. As such,
there is no rule which prevented the applicant from approaching the
Constitutional Court in terms of section 85(1)(a) of the
Constitution. She went further and argued that the Labour Court has
no power to issue a declaratur.
It
was on that basis that the applicant argued that the matter was
properly before the Court.
Mr
Mupindu
submitted that the application was an abuse of court process as there
was a pending appeal before the Labour Court.
Counsel
for the third respondent, Mr Mucheche,
made submissions to the same effect.
He further submitted that the ground on which the application was
brought was that the first respondent compelled the applicant to
disclose her health condition. The matter before the Labour Court
involved the determination of the question whether the applicant was
compelled to disclose her health condition. The ground on which the
application was brought to this Court alleging the violation of the
fundamental rights referred to in the founding affidavit is the same
as the ground on which the appeal before the Labour Court is to be
determined.
In
determining the question whether the first respondent acted lawfully
when it charged, convicted and dismissed the applicant for giving
false information or knowingly omitting relevant information when she
completed the medical examination form for employment purposes, the
Labour Court would ipso
facto
decide the question whether the applicant's rights were infringed.
It
is important to note that the purpose of the disciplinary proceedings
was not to compel the applicant to reveal her health condition. The
purpose was to determine the question 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
application is not only ill-conceived, it is procedurally improper,
as an application cannot be made directly to the Constitutional Court
in terms of section 85(1) of the Constitution alleging a violation of
a fundamental right in respect of conduct, the lawfulness of which is
a subject of inquiry in proceedings pending before a subordinate
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.
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.
The
application is dismissed with costs.
CHIDYAUSIKU
CJ: I agree
ZIYAMBI
JCC: I agree
GWAUNZA
JCC: I agree
GARWE
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
MAVANGIRA
JCC: I agree
Messrs
Kwenda & Associates,
applicant's legal practitioners
Messrs
Mupindu Legal Practitioners,
first and second respondents legal practitioners
Messrs
Matsikidze and Mucheche,
third respondent's legal practitioners
