SS. 23 & 26(1) of the Constitution and O.77A GCR Between Shelliann Bush Petitioner v (1) The Attorney General of the Cayman Islands First Respondent (2) The Department of Labour and Pensions Second Respondent
| Jurisdiction | Cayman Islands |
| Judge | Mr Justice Alistair Walters |
| Judgment Date | 25 April 2023 |
| Docket Number | Cause No. G 155 of 2022 (LACV75 OF 2022) |
| Court | Grand Court (Cayman Islands) |
In the Matter of SS. 23 & 26(1) of the Constitution
And in the Matter of O.77A GCR
Hon Mr Justice Alistair Walters (Actg.)
Cause No. G 155 of 2022 (LACV75 OF 2022)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Distinction between unfair dismissal (ss 49–55 Labour Act) and wrongful dismissal — Separate remedies. Jurisdiction of Grand Court limited to wrongful dismissal — Claim for unfair dismissal by employee of a Cayman Islands charity not investigated by Labour Tribunal because lack of jurisdiction arising from s 3 Labour Act which provides that provisions of Labour Act do not apply to charities. Whether lack of access to the Labour Tribunal constituted a breach of the Petitioner's rights under ss 7, 9, 10 and 16 of the Cayman Islands Constitution Order 2009, Part 1, Bill of Rights, Freedoms and Responsibilities. Whether s3 Labour Act incompatible with Bill of Rights. Whether the Petitioner waived her right to bring proceedings by virtue of provision in her contract of employment.
Mr Rupert Wheeler of KSG Attorneys for the Plaintiff
Mr Michael Smith, Senior Crown Counsel and Ms Heather Walker, Crown Counsel, Attorney General's Chambers for the Respondents.
The underlying facts of this case are relatively straightforward and are set out in the Petitioner's affidavit dated 12 July 2022 (the “First Affidavit”) 1. The Petitioner is a Caymanian who was employed by the Pines Retirement Home, a Cayman Islands non-profit charitable organization established to provide residential accommodation for the elderly (the “Pines”).
Her employment with the Pines started on 3 October 2011 under the terms of a contract dated 10 October 2011 (the “2011 Contract”). The Petitioner's initial role was as receptionist. On 17 August 2017 her role changed to Assistant Day Care Coordinator, and she signed a new contract dated 17 August 2017 (the “2017 Contract”). On 22 November 2021 the Petitioner's employment with the Pines was terminated. The reasons for that are succinctly set out in the Petitioner's First Affidavit and I have set them out below 2:
“8. On the 14th July 2021, I received a letter from The Pines, titled “Weekly PCR Test for Non-Vaccinated Staff” (SB1/1). The letter stated 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 July 2021, all staff in that position had to submit a weekly test starting on Tuesday the 20th July 2021. Failure to comply would result in suspension without pay. If the staff member became vaccinated, the testing policy would no longer apply.
9. I was not vaccinated at this time. In line with the policy, I began to take the weekly PCR tests on Tuesdays.
10. On the 20th October 2021, The Pines issued a memo titled “Mandatory COVID-19 Vaccination for Staff” (“the 20th October 2021 Memo”) (SB1/2). It stated
that The Pines' Board of Directors had approved and implemented a COVID-19 Mitigation Plan, which “included a mandate that all current and future employees must be vaccinated for COVID 19”. It stated further that all employees would receive new contracts starting the 20 th November 2021 to reflect the mandate. The letter concluded by stating that “your contract will not be renewed effective 21 st November 2021 without confirmation of your having received the vaccination for COVID-19”.11. 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. I expected at the very least that one of my superiors would speak to me about taking the vaccine, and give me alternative options. For instance, there were certain roles within the organisation that did not require frequent or close contact with the elderly residents. However, no one reached out to me to discuss this sensitive issue. I felt that I was being forced to choose between keeping the job that I had been doing for 10 years, or taking a vaccine that I was unsure of.
12. The whole matter was made worse because I had serious religious reservations about taking the vaccine. I believe that I should have had a freedom of choice about what goes into my body. The Pines didn't give any thought to these issues or my concerns. 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.
13. I also knew that there was no government requirement that I had to take the vaccine. There was nothing in my contract that required me to take it.
14. I found the whole issue very stressful. I was worried about my future and did not know what to do. I needed my job to support myself and my daughter. However, I realised that the policy as stated in the 20th October 2021 Memo gave me a month, until the 20th November 2021, to consider what I was going to do and whether I would take the vaccine. I wanted to use that time to reflect carefully over what I was going to do.
15. On Tuesday the 16th November 2021, I took my weekly PCR test as normal. Unfortunately, the result was positive. This meant that I had to follow the government rules and go into isolation at home. I immediately informed my supervisor Jusene Brown and emailed the positive result to her. I did this because I was expected to be at work the following day. At this time, my working hours were Monday to Friday, 0830 to 1730.
16. Since I had gone into isolation, I assumed that I would be given additional time to get the vaccination. After all, I could not receive it until I was released, and it could have been a number of weeks before I tested negative.
17. I was therefore very surprised when I received a further letter from the Pines by email on 25th November 2021. The letter, dated the 22nd November 2021, was titled “Termination Effective 22nd November 2021” (SB1/3). It said that:
“[i]n view of [my] noncompliance and no (sic) regards under the provision of the Labor Law, your employment is hereby terminated effective today, 22nd November 2021. The Board of Directors agreed a severance package for you and once prepared I will contact you directly”.
It was also alleged by the Pines that the Petitioner had come into work on 16 November 2021 despite feeling unwell having not taken a PCR test and subsequently testing positive. It was further alleged that her conduct had resulted in other staff members and resident being infected, and caused the death of a resident 3.
The Petitioner did not receive what she regarded as a satisfactory justification from the Pines for her dismissal and instructed her attorneys, KSG to assist her in bringing a claim under the Labour Act (2021 Revision) (the “Labour Act”) for severance pay, compensation for unfair dismissal and a claim for damages for wrongful dismissal. KSG wrote to the Pines on 17 February 2022 setting out her position. In response, the Pines alleged that the Petitioner had been dismissed for serious misconduct. The Petitioner is firmly of the view that she was unfairly dismissed and also discriminated against because of her religious beliefs about taking the vaccine 4.
Severance pay is compensation payable to an employee when their employment is terminated. It is provided for in ss. 40–46 of the Labour Act. §§ 40 and 41 state:
“Right to severance pay generally
40. (1) Every employee whose term of continuous employment with an employer and any predecessor-employer has in aggregate exceeded one year is entitled to receive, in addition to any other payments which may be due to that employee, upon termination of that person's employment by that person's employer for any reason, other than a dismissal which is within paragraph (a), (b) or (c) of section 51(1), severance pay, being payment in money calculated in accordance with this Part.
(2) In the case of the bankruptcy or winding up of an employer any liability for severance pay shall be paid in priority to all other debts, secured or unsecured, and shall be paid in full unless the property available is insufficient to meet them.
(3) Severance pay shall be payable to an employee for the full period of that person's employment, including any period of employment prior to the 1st March, 1988, if that employment is terminated on or after the 1st March, 1988.
Computation of severance pay
41. (1) Severance pay shall consist of one week's wages, at the employee's latest basic wage, for each completed twelve-month period of that person's employment with that person's employer and any predecessor-employer.
(2) In the case of part-time employees their entitlement to severance pay shall be calculated on the basis of the ratio that their actual hours of employment bear to the standard work week.”
§§. 49–55 of the Labour Act provides the framework for unfair dismissal.
“Unfair dismissal: general
49. (1) This Part shall only apply to an employee who has —
(a) completed that person's probation period; or
(b) in the case of an employee not employed on probationary terms, completed three months of continuous employment with that person's employer.
(2) Any termination by an employer of an employee's employment shall be fair if it is within section 50 or 51. 50.
Termination after fixed term of employment
50. For the purposes of this Part, an employee is not unfairly dismissed if that person's employment is terminated at the expiration of a fixed term specified at the time of...
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