(CMR) The Court of Appeal has disagreed with a Grand Court ruling that a woman employed by a charity who was dismissed after she refused to take the COVID-19 had her rights breached when the Department of Labour and Pensions denied a hearing into her complaint.
The Grand Court had ruled that the Department of Labour and Pensions was discriminatory and breached the Bill of Rights of Shelliann Bush, who was an employee of The Pines Retirement Home for 10 years when she was dismissed from the local charity in 2021. Bush claims she was unfairly dismissed and also discriminated against because of her religious beliefs about taking the COVID-19 vaccine.
However, when she filed a complaint, the Department refused to hold a hearing on the grounds that she was employed by a charity, which did not fall under its jurisdiction.
Last year, 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.”
The Department of Labour and Pensions and the Attorney General of the Cayman Islands, filed an appeal of this decision and has been successful.
According to the Court of Appeal, Section 3 of the Labour Act excludes, among other bodies, charitable organisations from the provisions of the Act.
“I find it difficult to accept the legislature could have intended to exclude such bodies from the application of the Act, while at the same time conferring on employees of those same bodies the rights which the legislation was creating,” Hon. Sir John Goldring, President of the Court of Appeal stated.
“I cannot, in other words, accept, as the judge found, that it was Parliament’s intention to exclude employers from the provisions of the Act but, at the same time, create rights for their employees. That would not seem to me to be logical,” the judge added.
“The inexorable consequence of excluding specific employers from the application of the Act must, it seems to me, be to exclude employees of those employers. Moreover, it is implicit in the wording of the proviso to s.3(a) that that is so. The proviso requires that the conditions of service of those employed in the public service must not be less favorable than those required by the Act,” he continued.
Sir John Goldring said he does not accept that section 3 is a procedural measure, the effect of
which is to bar those employed by the bodies named from accessing remedies otherwise available to them under the Labour Act.
“In my view, the effect of section 3 is that employees of the organizations named have no such right. That inevitably means that there is no substantive civil right upon which section 7 can bite and the appeal in that respect must be allowed,” he added.
The Court of Appeal judge also explained that Bush's situation does not fall within the ambit of section 7.
He said what section 7 is intended to protect is the procedural right of access to an independent and impartial tribunal to enforce an underlying right found elsewhere. That is a long way from the rights created by the Labour Act, which is about the protection of employees in the workplace.
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.
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