“The misconception [...] that someone with HIV is so ill that he should not be employed assails the core of that person’s dignity and results in the unfair and unconstitutional condemnation to ‘economic death’.”

Judge Bhoola, citing Hoffmann v. South African Airways (2000)

“Fear and ignorance can never justify the denial to all people who are HIV positive of the fundamental right to be judged on their merits. Our treatment of people who are HIV positive must be based on reasoned and medically sound judgments. They must be protected against prejudice and stereotyping”

Judge Bhoola, Gary Shane Allpass v. Mooikloof Estates (Pty) Ltd.

On 16 February 2011, in the case of Gary Shane Allpass v. Mooikloof Estates (Pty) Ltd, (Case No. JS178/09), the Johannesburg Labour Court awarded the complainant compensatory damages for unfair dismissal and discrimination on the grounds of his HIV status. The decision examines issues of discrimination in employment on the grounds of HIV status and unfair dismissal, as well as discriminatory screening and forced disclosure of HIV status.

The complainant was employed by the respondent as a horse riding instructor and stable manager on 1 November 2008. At the time of his recruitment, he had been living with HIV for almost 20 years. Prior to being hired, the complainant underwent an interview, during which he informed the respondent that he was “in good health”. Shortly after his hiring, the complainant — along with other employees — was asked to complete a form requiring him to disclose whether he was taking any “chronic medication.” The complainant complied and disclosed that he was taking, among other things, daily medication to manage his HIV condition. Upon learning of his HIV-positive status, the respondent immediately terminated the complainant on the grounds that he had fraudulently misrepresented his condition and that he was in fact “severely ill”. In addition to the allegations of discrimination and wrongful dismissal, the complainant, who resided on the respondent employer’s estate as part of the terms and conditions of his employment contract, alleged that he had been insulted, manhandled and physically evicted from the estate.

The Labour Court found that the complainant had been discriminated against and unfairly dismissed due to his HIV status and awarded him twelve months’ remuneration in compensatory damages and costs. The Court considered that the dismissal violated the equality rights enshrined in subsections (a) and (b) of section 9 of the Constitution of the Republic of South Africa Act, No. 108 of 1996. The Court also considered that the dismissal violated sections 187 (1) (f) and 188 of the Labour Relations Act, No. 66 of 1995 and section 6 (1) of the Employment Equity Act, No. 55 of 1998. [The allegations of harassment and forced eviction were dismissed by the Court due to the lack of evidence establishing a direct link between the eviction, which was carried out by a third party, and the respondent.]

In reaching its decision, the Court made reference to the Code of Good Practice on the Key Aspects of HIV and AIDS in Employment. It also relied on the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200). Also of interest in this judgment are the observations made by the Court that, while the complainant did not plead that questions put to him by the respondent in the hiring interview regarding his sexual orientation, religious affiliation and marital status were discriminatory, the Court noted that such questions would in fact constitute unfair discrimination.

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