The Equality Court might have dismissed Sister Wilhemien Charles's case, but she is not giving up. She has vowed to fight all the way to the Constitutional Court, so that nurses who do not want to take part in abortions should have their religious beliefs and conscience respected.
On Wednesday the Vereeniging Equality Court dismissed Charles's case and referred the matter to the Labour Court on the grounds that it didn't have the authority to hear it. The case arose out of a dispute between Charles and the health authorities in March, when the latter barred her from working in the Kopanong Hospital theatre after she had refused to take part in abortion procedures.
She had cited her religious convictions as reasons for her refusal to perform emergency procedures on women who suffered complications after undergoing abortions. Charles is a chief professional nurse with special qualifications in theatre work.
The hospital authorities subsequently moved her to another theatre which does not deal with emergencies arising from abortions. Charles then resigned and claimed constructive dismissal on the grounds that she had been discriminated against.
Together with Doctors for Life, an organisation representing more than 1 000 medical practitioners around the world, she took the matter to the Equality Court, claiming that her constitutional rights had been violated. They cited the Gauteng health department, the MEC and the national minister of health as the defendants in the case.
In addition to an order that she be reinstated in her previous post, the complainants had also asked for an unconditional apology and an order directing the authorities to stop "unfair discriminatory" practices at all health institutions.
However, the state attorneys representing the health departments argued that the court had no jurisdiction to hear the matter and that it should instead be heard in the Labour Court. They also contended that since the gist of Charles's case was unfair dismissal, the matter fell within the scope of the Employment Equity Act.
Charles's lawyer, John Smyth, told the court that his client had endured a gross violation of her rights under the constitution. "We say that was the clearest possible breach of the equality clause which forbids unfair discrimination on the grounds of religion, conscience or belief," argued Smyth.
However, the court ruled in favour of the state and referred the case to the Labour Court.