Court rules woman denied fair hearing after COVID-related termination

(CMR) The Grand Court has ruled that the Department of Labour and Pensions was discriminatory and breached the Bill of Rights of a former charity employee when it denied a hearing into her complaint that she lost her job after she refused to take the COVID-19 vaccine.

Shelliann Bush was an employee of The Pines Retirement Home for 10 years when she was dismissed from the local charity in 2021 after she refused to get the COVID-19 vaccine.  Bush claims she was unfairly dismissed and also discriminated against because of her religious beliefs about taking the vaccine.

She filed a complaint, but the Department refused to hold a hearing on the grounds that she was employed by a charity, which did not fall under its jurisdiction.

Justice Alistair Walters said, ” I find that the Petitioner’s rights under §.7 of the Bill of Rights were infringed…The Petitioner was discriminated against in contravention of §.16 of the Bill of Rights.”

According to Court documents, on the 14th of July 2021, Bush received a letter from The Pines stating that the Pines’ Board of Directors had implemented a weekly PCR COVID-19 test for staff that had not received a vaccination. It stated that from Monday, the 19th of July 2021, all staff in that position had to submit a weekly test starting on Tuesday, the 20th of July 2021. Failure to comply would result in suspension without pay. If the staff member became vaccinated, the testing policy would no longer apply.

Bush was not vaccinated and started doing regular tests. However, in October 2021, Pines mandated that all current and future employees must be vaccinated for COVID-19. It stated further that all employees would receive new contracts starting the 20th of November 2021 to reflect the mandate. The letter concluded by stating that “your contract will not be renewed effective 21st November 2021 without confirmation of your having received the vaccination for COVID-19”.

“I felt that this requirement was very unfair. I felt that I was being pressured to get a vaccine that I was not sure I wanted to take. I was not clear about the effects and side effects of the vaccine. The Pines did nothing to explain these to me, but instead just insisted that it had to be taken,” Bush said.

“I felt that I was being discriminated against because the Pines didn’t seem to care about whether I had religious reasons for not wanting to take the vaccine. I also knew that there was no government requirement that I had to take the vaccine,” she added.

On Tuesday, the 16th of November 2021, she tested positive for COVID-19 and went into isolation. Bush thought due to being tested positive, she would have been given time to get vaccinated; however, instead, she received a  letter from the Pines by email on 25th November 2021 stating that she was being terminated.

Being dissatisfied with the position adopted by the Pines, on 19 February 2022, she filed a complaint with the Department of Labour and Pensions. On 24 February 2022,  her lawyer received an email from a Senior Labour and Pensions Inspector stating that “the Pines Retirement Home is registered as a charitable organization which is not covered in the Labour Act. The Department of Labour and Pensions (DLP) is empowered by the Labour Act and only has jurisdiction to address matters and entities covered under this Act. Unfortunately, we are not able to investigate Ms. Bush's complaint as per section 3(b) of the Labour Act (2021 Revision).”

Bush then brought the matter before the court, claiming that as a result of the Department's decision, she was denied the right to a fair hearing in the determination of her civil right to remain in employment, and as a result, that right was allowed to be extinguished.

The court was to decide whether the lack of access to the Labour Tribunal constituted a breach of Bush's rights under the Cayman Islands Constitution Order 2009, Part 1, Bill of Rights, whether the Labour Act is incompatible with Bill of Rights, and whether the Petitioner waived her right to bring proceedings by virtue of a provision in her contract of employment.

According to the Bill of Rights, everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.

The judge declared that §.3(b) of the Labour Act is incompatible with the Bill of Rights and said Counsel can make further submissions in relation to the question of damages.