The Judicial Committee of the Privy Council has confirmed that employees of charitable organisations in the Cayman Islands have no statutory right to protection against unfair dismissal, and that this exclusion does not breach the Cayman Islands' Bill of Rights.
Background
The appellant, Ms Shelliann Bush, had been employed at The Pines Retirement Home (a charitable organisation) until November 2021, when she was dismissed for failing to comply with a newly introduced vaccination requirement, in response to the COVID-19 pandemic.
Seeking compensation under the Labour Act (2021 Revision) (Act), she was informed by the Department of Labour and Pensions that the Act does not apply to charitable organisations, by virtue of section 3(b).
The appellant brought constitutional proceedings, arguing that this exclusion denied her rights under section 7 (fair trial), section 9 (private and family life), and section 16 (non-discrimination) of the Bill of Rights.
Proceedings Below
At first instance (Grand Court), the Honourable Justice Walters (Actg) held that section 3(b) imposed a procedural bar which violated section 7 and gave rise to discriminatory treatment. However, the Cayman Islands Court of Appeal reversed that decision. It held that by virtue of section 3(b), employees of charities have no substantive civil rights to claim unfair dismissal. Without such a right, section 7 was not engaged.
The Privy Council's Reasoning
Lord Lloyd-Jones, giving the advice of the Board, upheld the Court of Appeal's approach.
Section 7: No substantive right to unfair dismissal
Section 7 of the Bill of Rights, like Article 6 of the European Convention on Human Rights, is a procedural guarantee. It does not create substantive rights where none exist in domestic law.
The Board drew on R (Kehoe) v Secretary of State for Work and Pensions [2006] 1 AC 42; and Matthews v Ministry of Defence [2003] 1 AC 1163, both of which emphasised that Article 6 is concerned with access to courts for determination of existing rights, not the creation of new rights.
Whilst the Labour Act does confer a statutory right not to be unfairly dismissed, section 3(b) expressly excludes charitable organisations. This exclusion prevents such rights from arising at all, rather than imposing a procedural bar on their enforcement.
International law arguments rejected
The appellant sought to rely on international labour standards and on dicta from R (Wright) v Secretary of State for Health [2009] 1 AC 739, and the concurring opinion of Judge Pinto de Albuquerque in K.M.C. v Hungary (App No 19554/11), 19 November 2012 (ECHR), to argue that there exists a universal civil right not to be unfairly dismissed. The Board, however, rejected this submission, noting that unfair dismissal is a statutory construct which varies across jurisdictions and is not mandated by international law.
Section 16 read with section 7 or 9
The appellant further argued that section 16 prohibited discriminatory exclusion from the statutory scheme. The Board held that since section 7 was not engaged, section 16 could not be read with it.
As to section 9, the Board accepted that employment-related disputes may in some circumstances fall within the notion of 'private life' for example, Denisov v Ukraine (App No 76639/11), 25 September 2018, ECHR Grand Chamber and Novakovic v Croatia [2021] ELR 169), which illustrate that Article 8 can apply where dismissal has severe consequences for private life or professional reputation.
However, the Board followed its own recent guidance in Royal Cayman Islands Police Association v Commissioner of Police [2022] ICR 117, holding that the unfair dismissal regime was designed to regulate employment relations, not to safeguard private life. The link to section 9 was therefore 'too tenuous' to engage section 16.
Conclusions
- The decision of the Privy Council reaffirms a sharp doctrinal distinction: Wrongful dismissal remains available under the common law where the contract of employment is breached, but its remedies are limited (usually to notice pay).
- Unfair dismissal is purely statutory. If Parliament has withheld it from a category of employees, courts cannot supply it through constitutional interpretation. More broadly, the case illustrates the limits of the Bill of Rights in expanding employment protections.
- Section 7 cannot create substantive rights, and section 16 discrimination claims require a sufficiently close connection with the core values of the relevant right.
The ruling is therefore significant both for employment law (leaving employees of charities reliant solely on contractual remedies) and for constitutional law, in affirming a restrained approach to the ambit of rights under the Cayman Islands Constitution.
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