Where an employer has HIV positive employees on their staff, can they use competence as a measure to dismiss an employee on that basis alone? No.
Yet, being HIV positive has become a dismissible offence according to the modern day employer. The stigma is far-reaching and the workplace is yet another arena where HIV positive employees are victimised.
People living with HIV constitute a minority. Society responds to their plight with intense prejudice. They are subjected to systemic disadvantage and discrimination. They are stigmatised and marginalised. They are denied employment because of their HIV positive status without regard to their ability to perform the duties of the position from which they have been excluded. Society’s response to them forces many of them not to reveal their HIV status for fear of prejudice. This in turn deprives them of the help they would otherwise receive.
Notwithstanding the availability of compelling medical evidence as to how this disease is transmitted, the prejudices and stereotypes against HIV positive people still persist. The impact of discrimination on HIV positive people is devastating especially when it occurs in the context of employment. It denies them the right to earn a living. For this reason they enjoy special protection in our law.
Employees often disclose their status to the employer out of fear of losing their job, or when faced with an employer’s questions about why they need a day off each month to collect medication. On the other hand they disclose their status in an attempt to retain their jobs. Employees are then faced with fierce discrimination, marginalisation, prejudice and ultimate dismissal in the workplace.
Discrimination and the law
Discrimination occurs when a person is treated differently from others because of prejudice. The Constitutional Court has mentioned that the basis for the prohibition of unfair discrimination is the recognition that all human beings regardless of their position in society have equal dignity. This dignity is impaired when a person is unfairly discriminated against.
Prior to 1998, employees relied on the provisions of Section 187(1)(f) of the Labour Relations Act 66 of 1995 (“LRA”) which provided various grounds on which a dismissal could be deemed unfair. Employees also relied on Section 9(3) of the Constitution which sets out grounds upon which a person may not be discriminated against. The problem was that HIV/AIDS in both the above pieces of legislation was not a listed ground. This necessitated the introduction of laws to prevent and/or address discrimination against people living with HIV in all areas of life including the workplace.
The Employment Equity Act (“the EEA”) No 55 of 1998 was amongst some of the pieces of legislation introduced to deal with discrimination against HIV infected employees.
Section 6(1) of the EEA provides that no person may unfairly discriminate directly or indirectly against an employee, in any employment policy or practice on one or more grounds including amongst others a person’s HIV Status.
Section 7 of the EEA prohibits medical testing of an employee unless it is permitted by legislation and if it is justifiable in light of medical facts, employment conditions, social policy and the fair distribution of employee benefits or the inherent requirements of the job. This section provides further that testing of an employee to determine their HIV status is prohibited unless such testing is determined justifiable by the Labour Court in accordance with these criteria. The definition of testing in the EEA is quite broad. Often employers design questionnaires which are couched in ambiguous terms to try and ascertain the medical condition of employees. The above section renders these questionnaires unlawful unless an employer obtains the permission of the Labour Court to do this. In the event that the court agrees to this it may direct that pre or post counselling be offered to employees and that the employers keep the information obtained confidential.
Nonetheless, employers are sometimes faced with a situation where an employee cannot continue doing the same duties due to illness. The Code of Good Practice on Key Aspects of HIV/AIDS which was introduced in December 2000 as well as the revised Code provides that employers have to accommodate employees as far as possible. This includes restructuring positions where they will be expected to do less strenuous duties, as opposed to merely dismissing them or medically boarding the employees. If an employee cannot perform their duties an employer is entitled to institute an incapacity inquiry, which can be the basis for dismissing an employee.
Steps to take after an unfair Dismissal based on HIV/AIDS
• Refer the matter to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) within 30 days.
• If the matter is not resolved at the CCMA you should refer the matter to the Labour Court within 90 days from the date of conciliation.
• An employee who is unfairly dismissed on the grounds of HIV is eligible to apply for damages and/or re-instatement under both Section 187(1)(f) of the LRA and the EEA.
• Employees dismissed on the grounds of HIV who have no resort to legal assistance can seek free legal advice at the HIV and TB helpline operated by Legal Aid SA on 0800 110 110.
I would recommend that employees familiarise themselves with the above legislation to ensure that their rights are not infringed upon and in the event that their rights are infringed to urgently contact Legal Aid SA in order to receive legal advice. Employees should know what steps to take when their rights are infringed upon. Similarly employers and trade unions should develop appropriate strategies and policies to understand, assess and respond to the impact of HIV/AIDS in their particular workplace and sector.
Ayanda Ngubo is a Partner in the Pro Bono Practice at Webber Wentzel.