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 ). 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
Copy of the decision on file with ICJ