Diau v. Botswana Building Society

The applicant alleged that her employer excluded her from employment after she refused to undergo an HIV test.

Decision | 19 December 2003
INDUSTRIAL COURT, GASORONE (IC NO 50 OF 2003)

Facts

The applicant was offered a position as a security assistant in February 2002 on a probationary basis. Her employer informed her that the offer was conditional on her passing a medical examination. In August 2002, the employer informed her that she was also required to provide certified documentation of her HIV status. On 7 October 2002, the applicant informed her employer that she was not willing to undergo such an HIV test. On 19 October 2002, the applicant received a letter from her employer stating that her employment was terminated.

Decision and Reasoning

The employer argued that the complainant was still on probation at the time of her dismissal and that it was therefore entitled to dismiss her without having to provide a valid reason. The Court found, however, that the probationary period had expired before the written request was made for certification of the applicant’s HIV status. In the circumstances, the Court found that the applicant had been terminated due to her refusal to undergo an HIV test. Given the Court’s conclusion that the applicant had completed her probationary period at the time of the dismissal, the Court considered the legality of requiring an employee to undergo post-employment mandatory HIV testing. The Court ruled in favour of the applicant, concluding that terminating her employment solely because she refused to undergo an HIV test was unlawful and inconsistent with human dignity. The Court emphasized that the ultimate decision to undergo an HIV test belonged to the applicant, not to her employer or to a medical doctor and that requiring mandatory HIV testing constituted inhuman and degrading treatment amounting to an assault on her right to liberty and dignity under the Constitution.

The Court also held that compelling the applicant to undergo such a test was irrational as it was not related to the inherent requirements of the applicant’s job as a security officer. The Court therefore ordered that the applicant be reinstated to her position and awarded compensatory damages in the amount of four month’s salary for wrongful termination.