In two recent cases, the Brazilian Federal Superior Labour Tribunal found in favour of HIV-positive workers, ruling that the workers had been unfairly dismissed on the basis of their HIV status and ordering that they be reinstated:
- PHILIPS da Amazônia Indústria Eletrônica Ltda. Contra Ricardo Carvalho Santos (Case No. TST-RR-1017500-36.2007.5.11.0018, issued 7 March 2012, published on 16 March 2012) and
- Fernando César Festante contra Banco SANTADER (Brasil) S.A. (Case No. TST-RR- 124400-43.2004.5.02.0074, issued 25 April 2012, published on 11 May 2012).
With these rulings in March and May 2012, respectively, there are now four separate Brazilian judgements in HIV-related employment discrimination cases based on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200). The two prior cases were issued in 2011 and can be found on the ILO/AIDS website at: http://www.ilo.org/aids/legislation/WCMS_127851/lang--en/index.htm
On the issue of the burden of proof, the Tribunal in the Philips case held that the respondent employer --not the complainant—had the duty of proving that the dismissal was not due to the complainant’s HIV status.