Appeal court finds BoR doesn’t protect charity workers
(CNS): A woman who was fired from a non-profit organisation but had won a partial legal victory regarding her labour rights has lost to the government in the Cayman Islands Court of Appeal. The Grand Court had found that the Labour Act is incompatible with the Bill of Rights because anyone working for an NPO is currently excluded from that legislation. However, in a recent ruling, the appeal court disagreed with the judge who presided over the case, finding that the BoR does not protect workers excluded under the Labour Act.
The ruling implies that if a person who works for an organisation that is not covered under the law, such as NPOs and churches, is fired, there is no legal tribunal where their case can be heard if they believe their dismissal was unfair. The higher court found that section 7 of the Bill of Rights does not create the right to a fair hearing, only the means to a hearing if that right already exists.
In this case, Shelliann Bush, who had worked at the Pines Retirement Home, a registered NPO, for more than ten years, was fired in November 2021 after she had refused to be vaccinated against COVID-19. Because its residents were some of the most vulnerable to the virus, the Pines had implemented a mandatory vaccine policy for all staff. Bush refused both on religious grounds and due to fears that the vaccine was not well tested.
However, after being told that she had to get the vaccine in order to keep her job, she went to work while positive for COVID-19, as she had missed a day taking a test for the virus. This led to some residents at the home also getting infected, and she was dismissed.
The lower court found that Bush had offered no evidence of religious discrimination but did find that she had been discriminated against on other grounds. That court had focused on the fact that there is no clear road for employees of non-profits to find redress when they might have been unfairly dismissed.
With no indication in the parliamentary record as to why charities were excluded from the original labour law, Justice Alistair Walters, who had presided over the original lawsuit against the government, said this meant that Bush had been treated differently from others in a similar situation; she had been discriminated against and her rights to a fair hearing under section 7 had been infringed.
However, the appeal court disagreed fundamentally with the Grand Court’s findings.
“The protection afforded by the section does not confer an unlimited right to a fair hearing in all contexts,” wrote Justice Sir John Goldring, who authored the appeal judgment. “It is a procedural guarantee of a fair hearing in the determination of whatever substantive right exists in the domestic legal order… There is in my view little connection between that core value and a statutory scheme designed to protect employees from being dismissed without good reason.”
The appeal court disagreed with Justice Walters’ findings that excluding charity workers from the law breached the Bill of Rights and was discriminatory. The panel found that there was no fundamental right to a legal hearing for workers sacked from NPOs as lawmakers had deliberately written the law to exclude both employers and employees from the Labour Act.
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the law needs changing so that charitable organisations fall under the same regulations as ordinary companies. Charitable organizations abuse the law by saying they are not covered by the labour law when its convenient to them
She did a despicable thing. But ruling that working for a charity isn’t WORK covered by Labour Laws is ridiculous! Think of all the abuses these charities can inflict upon people trying to help them. This must be changed.
Not the ruling needs change – MLAs need to change the Law (it would take about two lines to say that registered NPOs fall under the Labour Law).
one would think with such strong religious beliefs, she would think of the elderly, vunerable and sick over herself, unless its Cayman Christianity.
She intentionally spread the virus to the most at risk, should she not be charged, especially if any of the residents died as a result. You can be charged for intentionally spread HIV.
Section 167 of the penal Code why doesn’t the AG take action in this matter
“However, after being told that she had to get the vaccine in order to keep her job, she went to work while positive for COVID-19, as she had missed a day taking a test for the virus. This led to some residents at the home also getting infected, and she was dismissed.”
She should never be allowed to care for the elderly or any such vulnerable people, never again after this selfishness. 🤬
This is a significant ruling larger than the issue at hand (as constitutional challenges should be).
“The protection afforded by [section 7 of the Constitution] does not confer an unlimited right to a fair hearing in all contexts,” wrote Justice Sir John Goldring, who authored the appeal judgment. “It is a procedural guarantee of a fair hearing in the determination of whatever” [hearing process exists].
Agree or disagree, this is important to note as it means that the an easily accessible appeal process needs to be set out in each law. Alternately (especially if you disagree with the impact of the ruling) it may put more focus on the desirability for a freestanding ‘tribunals law’ that every other law could simply refer back to, i.e., instead of a labour tribunal and a planning tribunal and etc. a single law that says you can appeal on a point of law to the Tribunal.
a) It would be even easier if this was to a court, with a low cost of entry similar to small claims court’s cost cap, rather than relying on lay tribunals of volunteers in some rather tricky matters.
b) It wouldn’t help this tricky matter where the labour law is restricted in the workers it covers (excluding, for example, civil servants as well as NPO staff. But that is an easy (future) fix for the Parliament to change the labour law.
The Cayman Islands, not being a country, does not have a constitution.
There is no requirement in the definition of a constitution that the entity it governs is a country.
Read and be enlightened:
https://www.legislation.gov.ky/cms/legislation/constitution/current.html#
If my relative was in Pines and got infected, I would have sued her. Selfish POS
on the one hand, out labor laws are trash and this highlights that, on the other what a scumbag.
Covidiot.
MAGA wannabee
Lol. So all the church employees salt then.
wow! what a selfish POS!!!! she was infected and went to work in the pines? tell me more about your freedom of choice you selfish Tuesday.
it’s like a restaurant employee, refusing to wash his hands. of course if you say, God tells you not to use vaccinations, then we have to let that slide.
She went to work when she was positive knowing her clients u der care were vulnerable? I can support her decision not to get vaccinated, but WTF she went to work infected and her clients got infected? This shouldn’t be an issue of whether or not she had personal reasons for not getting vaccinated- it’s an issue of knowing there was a risk to other people and then ignoring it
well they could lose all the other benefits of being excluded too, so yeah don’t exclude them under labour law
perfectly said.