Monare v. Botswana Ash (Pty) Ltd

The applicant alleged that his employment was terminated by his employer on the basis of his HIV status.

Decision | 28 March 2004
[IC NO 112 OF 1998]

Facts

The applicant was employed in 1991 as a personnel officer in charge of industrial relations. In 1993, the company doctor became aware that the applicant was HIV positive. In 1997, the applicant’s health deteriorated and early symptoms of AIDS appeared. A further medical report confirmed that the applicant was in fact very ill. From July 1997, the applicant was hospitalized on different occasions. He was absent from work for seventy days until December 1997. When he came back to work in January 1998, he was only present for eight working days and was off sick for sixteen days. At the end of January 1998, the applicant faxed his employer a sick leave note explaining he would be off sick for the whole month of February. Consequently, the employer terminated the applicant’s employment on February 5th 1998.

Decision and Reasoning

The Court observed that even though the employer was aware of the applicant’s HIV status since 1993, he did not terminate his employment on the basis that the applicant could still carry out his duties. The Court further noted that, since the applicant became ill, the employer provided him with accommodation and transportation to the hospital, paid for medical aid fees and made sure he received the best medical care. Also, even though the applicant had overstepped his sick days’ quota by fifty-two days and was at times only working half days, the employer paid him his full salary every month.

The Court cited the 1998 National Policy on HIV/AIDS, noting that it was based on the principles of the ILO Code of practice (2001). The Court also mentioned Article 4 of ILO Convention No 158 of 1982 which states that “ [t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”. In the circumstances, the Court found that, since the applicant was very ill, he was no longer able to carry out the duties of the job he was hired to perform due to ill-health. In the circumstances, the Court found that the employer’s decision had a valid reason to terminate the applicant’s employment.