Doctors take fight to Supreme Court

Source: Doctors take fight to Supreme Court | Daily News

HARARE – Following Saturday’s ruling by the Labour Court declaring the strike by junior doctors illegal, the medical practitioners are escalating their case to the Supreme Court.

Munyaradzi Gwisai, who is representing the junior doctors and is being instructed by the Zimbabwe Lawyers for Human Rights, said he will approach the highest court on an urgent basis to appeal the ruling.

“I have instructions to file an application for leave to appeal at the Supreme Court because there are serious human rights issues which were raised,” he told the Daily News yesterday.

“We have received the court order and when we receive the judgment detailing the reasons for ruling, we will approach to the Supreme Court”.

Contacted for comment, the Zimbabwe Hospital Doctors Association (ZHDA) declined to comment saying they could only do so after being served with the order.

“I cannot give you our position right now. We have not yet been served with the Disposal Order. The 12 hours have not yet lapsed. For now, I cannot comment on that,” said ZHDA president Elias Muzoremba.

Labour Court judges Betty Chidziva and Gladys Mhuri ruled on Saturday night that the industrial action by the junior doctors was illegal in terms of the Labour Act.

They said the health practitioners did not give notice of the strike as prescribed by the law and that they were members of the critical services prohibited from embarking on collective job action.

It was noted by the learned judges that the doctors failed to prove that they were exposed to any occupational hazard which they reasonably feared to pose an immediate threat to their health and safety.

They therefore ordered the junior doctors to report for work within 12 hours of service of the order on ZHDA.

The Disposal Order states that the medical staff will not be paid for the time they were not at work.

It also directs the doctors to bear the legal costs of the suit on the ordinary scale.

The junior doctors, who fall under ZHDA, downed their tools early this month in protest over poor working conditions and have also demanded that the government pay their salaries in foreign currency.

The strike is the second in as many months by junior doctors, with the latest strike coming against the backdrop of a recent cholera outbreak.

Gwisai argued yesterday that his clients were not afforded a fair opportunity to be heard.

“The Labour Act calls for just resolutions and section 69 of the Constitution calls for the right to a fair hearing. Our client did not get that. On Friday (December 21) and around 12 noon, we received communication that the matter has been set for hearing on Monday (today). Around 3pm of the same day, we received a Show Cause Order instructing our clients to appear in court on Saturday (December 22) at 10am as earlier communicated.

“We closed offices and I left for home. At 16:47, one of our junior lawyers received a new notice from the assistant Sheriff instructing us to appear at the Labour Court at 5:15pm. We had less than 30 minutes to prepare for the hearing despite receiving formal communication earlier in the day.

“What kind of justice is that? I did not even have time to take instructions from my client. What is it that made the court decide to change dates? The court did not explain the sudden change in dates,” Gwisai fumed.

Saturday was a public holiday.

He described the ruling as insensitive as it concluded that there were no occupational hazards threatening the doctors’ health.

“Is it not true that members of the executives and ministers seek medical attention outside the country? If the hospitals are good, why are they not treated here? Is it not in the public domain that government is running around seeking medicines for the hospitals?” he questioned.

Gwisai said they made about five preliminary applications which were all dismissed.

On Saturday, Chidziva dismissed an application by the doctors where they challenged the applicability of the Labour Act, the validity of the cause order issued by Health minister Obadiah Moyo, the validity of the current proceedings and citation of Muzoremba and its secretary Mthabisi Bhebhe as third and fourth respondents respectively.

Chidziva also dismissed another application by the doctors seeking referral of the ruling to the Constitutional Court (Con-Court) on the basis that the striking members were not governed by Labour Act as they were employees of the State as stipulated by the Health Services Act.

The doctors had argued that by moving the date from Monday backwards to Friday, the courts violated their right to fair hearing.

It was also argued that the ruling raises constitutional matters which are of substantial and material interest for determination by the Con-Court.

Chidziva threw out that application, saying they raised preliminary rather than constitutional issues which can be addressed on appeal.

She said the request was frivolous and vexatious.