DISMISSAL OF AN EMPLOYEE BY AN EMPLOYER ON THE BASIS OF HIV/AIDS+ STATUS

Mr. X V. Mr. Jakobus Brink & 3 Ors NICN/ABJ/464/2016

WHETHER AN EMPLOYER CAN LAWFULLY DISMISS AN EMPLOYEE ON THE BASIS OF THE LATTER’S REAL OR PERCEIVED HIV/AIDS STATUS.

The case was to seek justice for Mr. X based on his loss of employment owing to

his HIV status. Mr. X was compelled by his employer to undergo a medical test

which test revealed that he was HIV positive and based on the results, his

employer terminated his employment. Owing to this, Mr. X contacted Lawyers

Alert and a suit was filed against his employer.  This case was heard and

determined at the National Industrial Court and Judgment was delivered on the

26th of September 2018.

OUTCOME:

The Court decided that dismissing someone from their employment on the basis

of their real or perceived HIV-status is workplace discrimination, which violates

the HIV and AIDS (Anti-Discrimination) Act, the African Charter on Human and

Peoples’ Rights, the International Labour Organization’s Convention on

Discrimination and other international and regional human rights laws.

The Court considered that the prohibition on HIV-related employment

discrimination is the reason why HIV screening is prohibited in employment

processes, why job applicants and workers cannot be forced to disclose their HIV-

status, and why dismissal on the basis of HIV-status is prohibited.