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Principles and standards Archives: Non-discrimination and equal protection of the law

Lemo v. Northern Air Maintenance (PTY) LTD

Year: 2004 (Date of Decision: 22 November, 2004)

Forum, Country: Industrial/Labour Court; Botswana

Standards, Rights: Non-discrimination and equal protection of the law; Procedural fairness; Right to decent work; Right to be free from torture and cruel, inhuman or degrading treatment or punishment

Summary Background: Issue at stake in this case: The applicant alleged dismissal from employment on the grounds that he was HIV positive. While the employer respondent did not expressly communicate this basis, the inference was raised as the applicant was dismissed one day after disclosing his positive status. It was noted that the respondent had been “accommodating” in permitting his employee to take extended unpaid leave over a three-year period due to his deteriorating health condition. The letter of termination listed “continual poor attendance over the last three years” as explanation for the cessation of employment. The Court addressed the question as to what, after three years of concessions, had actually triggered the dismissal of the applicant.

Holding: The Court found in favour of the applicant on the grounds of unfair dismissal and lack of procedural fairness. It rejected the respondent’s argument that it in fact sought to terminate the applicant’s contract one day prior to learning of his positive HIV/AIDS result, as there was no evidence that the applicant had been informed of a decision to dismiss him, nor was any valid reason given for his dismissal.

As the respondent largely authorized the applicant’s persistent absenteeism over three years, the Court rejected this as a valid ground for dismissal. Similarly, the applicant’s refusal to submit to medical examination by a private medical practitioner was not valid grounds for dismissal, as his fitness was already being assessed by a hospital. Thus even if the applicant were dismissed the day prior to disclosing his positive results, there was no valid reason for doing so.

The Court reiterated the interdiction on dismissal of an employee solely on the grounds of being HIV positive (citing Diau v. Botswana Building Society [2003]). While an HIV positive employee is not exempt from termination of employment, such action is only acceptable where the illness results in an inability to perform duties, as is the case with any illness or incapacity, in which case the normal rules of termination of services for inability apply. The Court warned of discriminatory practices towards HIV positive employees, which are at risk of violating section 7(1) of the Constitution, the prohibition on inhuman and degrading treatment. It condemned the unfair treatment of persons based on personal traits or circumstances that have “no relationship to individual capacities” [p. 7, para. H] and reaffirmed the constitutional principle of the elimination of discrimination at the workplace, enshrined in the International Labour Organization Declaration on Fundamental Principles and Rights at Work [para. A]. Additionally, the Court cited the ILO Termination of Employment Convention (1982) requiring dismissal based on a reason “connected with the capacity or conduct of the worker” [p. 6, para. E].

In sum, the respondent’s actions were found to be procedurally and substantively unfair. The Court emphasized that fair procedure requires the applicant to be consulted and warned that persistent absence may lead to dismissal, and that an employee must be granted the opportunity to ameliorate attendance performance, with full knowledge that failure to do so may result in dismissal.

The Court found it inappropriate to reinstate the applicant in his employment given the breakdown of relations and instead directed the respondent to pay compensation equivalent to six months of the applicant’s salary, as per section 19(2) of the Trade Disputes Act.

Additional Comments: The Court emphasized that modern antiretroviral drugs have largely curtailed the interference of the HIV/AIDS virus with the fulfilment of employment duties, and so the legitimacy of grounds for dismissal based on “incapacity” must be carefully scrutinized.

Full Citation: Lemo v. Northern Air Maintenance (PTY) LTD, 2004 (2) BLR 317 (IC), Industrial Court, Gaborone, Case No. IC No 166 of 2004, available at

http://www.oit.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_242081.pdf

Copy of the decision on file with ICJ

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Diau v. Botswana Building Society

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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