A judge has ruled the constitutional rights and freedoms of a care worker who was fired for not having a COVID-19 vaccine were breached when her unfair dismissal case was rejected.
The Department of Labour and Pensions said it could not investigate the matters surrounding Shelliann Bush’s termination because she worked for a registered charity.
But the 10-year employee of The Pines Retirement Home, who took the matter to Grand Court, said this contradicted the Bill of Rights.
In his judgment, Acting Justice Alistair Walters agreed, saying the Labour Act, which does not cover charitable organisations, is “incompatible” with that part of the Constitution.
‘Very unfair’
Walters read his 47-page judgment in Grand Court on 25 April in which he described in detail the circumstances leading up to Bush’s dismissal from the non-profit organisation.
He said Bush started working as a receptionist for The Pines in October 2011 and six years later became an assistant day care coordinator.
On 14 July 2021, Bush received a letter from the home’s board of directors saying they had implemented a weekly COVID-19 test for all staff that had not received a vaccination.
Failure to comply would result in suspension without pay, the letter said, so the care worker began to take the weekly test.
Three months later, a second letter was issued, this time saying all current and future employees must be vaccinated within that month or contracts would not be renewed.
“I felt that this requirement was very unfair,” Bush said in her affidavit read by the judge. “I felt that I was being pressured to get a vaccine that I was not sure I wanted to take.”
She said she expected to be given options, such as working in a role that did not require frequent or close contact with the elderly residents, but this did not happen.
Bush added that she had “serious religious reservations” about receiving the vaccine and believes she should have had freedom of choice about what went into her body.
In addition, there was no government requirement to take the vaccine and nothing in her current contract required her to take it, she said.
‘Non-compliance’
The care worker said she did not know what to do, so planned to take the month to think about her options.
On 16 Nov. 2021, she took her weekly PCR test and tested positive for COVID-19, so she informed her supervisor and went into isolation at home, the court heard.
“Since I had gone into isolation, I assumed that I would be given additional time to get the vaccination,” she said in the affidavit.
But on 25 Nov. 2021, Bush received an email containing a letter dated three days earlier which said because of her “non-compliance”, her employment was terminated.
The Pines told the court she had been dismissed for serious misconduct, Walters said in reading his judgement.
It also alleged that Bush was already feeling unwell when she came into work on 16 Nov. 2021, resulting in other staff members and residents subsequently being infected.
Following the dismissal, Bush instructed her attorneys to assist her in bringing a claim for severance pay, compensation for unfair dismissal and for damages for wrongful dismissal.
Incompatible
On 19 Feb. 2022, Bush filed an unfair dismissal complaint with the Department of Labour and Pensions. Days later, her lawyers got an email with a refusal to investigate her case.
It said as The Pines is a registered charity, it is not covered in the Labour Act, and the department therefore had no jurisdiction.
“Based on the above information shared, this matter is now closed with the DLP; we suggest that Ms Bush seek an alternate medium to address her complaint,” the email read.
This left her with no other avenue to pursue her claim.
The latest proceedings in Grand Court were brought on 18 July 2022 on the basis that the government had breached Bush’s rights and freedoms under the Bill of Rights.
She claimed she was denied a right to a fair hearing, and that her rights to both a private life and freedom of conscience were not protected.
The former care worker also claimed, during the 1 March 2023 hearing, that she was treated differently to employees of non-charitable organisations.
Walters ruled in favour of Bush on two grounds – that she was denied a right to a fair hearing, and was treated differently to employees of non-charitable organisations.
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