The applicant was employed as a trainee aircraft engineer in 1998. Between 1999 and 2003, the applicant’s health deteriorated significantly. Consequently, he exhausted all his annual and paid sick leave and was repeatedly granted unpaid leave by his employer. In January 2004, the applicant revealed to his employer that he was HIV positive. The following day, he received a letter from his employer informing him that his employment had been terminated due to high absenteeism during the previous years. The applicant lodged a complaint with the Botswana Industrial Court, alleging that he had been unfairly dismissed on the basis of his HIV status.
Decision and Reasoning
The Court found that the employer lacked any valid reason for terminating the applicant’s employment. On the basis of the evidence presented, the Court observed that the applicant’s employer had authorized all of his absences from work over the past years. The Court stated that “by not taking any action against the applicant for the last three years [the employer] had waived its right to take action and or condoned the applicant’s conduct […]”.
The Court further held that it was unlawful to dismiss an employee solely on the grounds that he is HIV-positive. In support of its reasoning, the Court cited the ILO Code of practice, noting that while the Code does not have the “force of law, it is persuasive insofar as it is in accordance with Botswana’s international obligations” (citing ILO Convention No. 111). The Court also held that the employer had not established that the applicant could not continue to carry out the duties of his employment due to his illness. The termination of the applicant’s employment was therefore unfair and a violation of his right to dignity guaranteed by the Botswana Constitution. The Court stated that it was unfair to exclude an employee through dismissal solely on the basis of his HIV status and without having established his/her incapacity. The Court also held that even in the case of progressive incapacitation, an employee cannot be dismissed without first being given a fair enquiry to determine the nature and extent of the incapacity and taking into account prognosis, length of service and other material factors.
The Court did not find that reinstatement was warranted in the circumstances, but awarded the complainant compensation in the amount of six months’ salary.