Year: 2003 (Date of Decision: 19 December, 2003)
Forum, Country: Industrial/Labour Courts; Botswana
Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Human dignity; Right to decent work
Summary Background: The applicant employee challenged the lawfulness and constitutionality of the respondent employer’s termination of her employment contract. The applicant contended that her refusal to undergo an HIV/AIDS test was “unreasonable” and in violation of sections 3, 7(1), 9(1) and 15(2) of the Botswana Constitution, and that the six month imposed probationary period of work exceeded the requisite three months permitted for “unskilled workers” as per section 20(1) of the Employment Act. The Court determined the applicant had in fact been an “unskilled worker” and affirmed the unlawfulness of the termination of the contract past the three-month probationary period. The imposition of the HIV test and subsequent termination was held to be in violation of the right to dignity and liberty.
Holding: The Court addressed the issue of whether the respondent’s termination of the employment contract shortly after the employee’s refusal to take an HIV test amounted to unfair discrimination, violation of privacy, dignity and liberty. While the reasons for termination were not expressly confirmed by the respondent, the Court took the view that the applicant’s dismissal without valid reason was clearly linked to her refusal to submit to an HIV test.
The Court noted that while Botswana does not provide binding legislation governing issues of HIV/AIDS and the workplace, the National AIDS Policy is consistent with the World Health Organization, SADC Code of Good Practice on HIV/AIDS and Employment (1997), HIV/AIDS and Human Rights: International Guidelines, United Nations (1998) and ILO guidelines on HIV/AIDS in the workplace, which encourage voluntary testing and denounce compulsory employment testing in determining one’s fitness to work [p. 12, para. D].
The Court acknowledged the stigmatization perpetuated by such mandatory measures and the “grossly unreasonable and unjust” consequences of employment terminated following a finding of an HIV positive result. The Court recalled the South African case of Hoffman v. South African Airways (2002), in which an individual successfully completed a four stage interview process and medical examination for a cabin attendant position, yet whose report was marked “unsuitable ” following an HIV positive test result [p. 13, para. D].
The Court went on to assess the specific violations of constitutional rights alleged by the applicant.
The right to privacy
Section 9(1) of the Constitution – Prohibits unauthorized search of the person, yet in this case no actual invasion took place as the applicant refused to submit to a test. Thus the right to privacy was not violated.
The right to non-discrimination
Section 15 of the Constitution – The Court referred to the contention that the applicant’s refusal to submit to an HIV test was due to a suspicion that she was likely to be HIV positive. While it could thus be inferred that the respondent terminated the contract on the “suspicion or perceived HIV positive status of the applicant,” there is no evidence to support that the applicant was in fact suspected to be HIV/AIDS positive. The respondent’s conduct thus could not be discriminatory, as no evidence demonstrated dismissal on the grounds of this suspicion.
Notably, the Court affirmed that the list of unconstitutional grounds of discrimination is not exhaustive, and that the ground of HIV status or perceived HIV status would be considered to be an unlisted ground under section 15(3) of the Botswana Constitution. Additionally, the Court noted that the principle of equality does not prohibit treating people differently, but rather “people in the same position should be treated the same,” free from irrational or unjustifiable discrimination [p. 18 at para. D].
The right to dignity
Section 7(1) of the Constitution – Quoting Ngcobo J in Hoffman v. South African Airways (2002), the Court noted that “Society’s response to (people living with HIV) has forced many of them not to reveal their HIV status for fear of prejudice. This has in turn deprived them of the help they would otherwise have received. People who are living with AIDS are one of the most vulnerable groups in society (and) the impact of discrimination on HIV positive people is devastating.” [p. 18 para. E].
The Court concluded the respondent’s conduct was inhumane and degrading, as he imposed upon the applicant the choice between protecting her employment by undergoing the test and simultaneously violating her right to privacy and bodily integrity, or insisting upon this right and losing her employment. This infringement of the right to dignity was found to be “demeaning, undignified, degrading and disrespectful to the intrinsic worth of human beings.” [p. 18 para. H].
The right to liberty
Section 3(a) of the Constitution- ‘Liberty’ was understood by the Court to include the right of individuals to make inherently private choices, free from irrational and unjustified interference by others. These involve those inherently personal matters that “go to the core of what it means to enjoy individual dignity and independence” [p. 20, para. A]. On the facts, the Court deemed that the choice to take an HIV test was fundamentally personal and relating to individual autonomy, and thus the respond ent’s imposition of an HIV/AIDS test coupled with the employee’s dismissal infringed the applicant’s right to liberty.
Additional Comments: The Court noted that “even the remotest suspicion of being HIV/AIDS positive can breed intense prejudice, ostracization and stigmatization” [p.18, para. H], highlighting the necessity to analyse such cases with particular scrutiny.
Link to Full Case: Diau v. Botswana Building Society, 2003 (2) BLR 409(IC), Industrial Court, Gaborone, Case No. IC No 50 of 2003, available at http://compendium.itcilo.org/en/compendium-decisions/industrial-court-of-botswana-sarah-diau-v.-botswana-building-society-19-december-2003-no.-ic-50-2003
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