HIV ruling a warning to employers

A Labour Court judgment in favour of an award-winning horse-riding instructor, dismissed by his employer for being HIV positive, is a warning to employers "who allow prejudice to cloud their judgement", a labour law expert said.

Johan Botes, a director of the employment law practice at the Cliffe Dekker Hofmeyr business law firm, said the case was a reminder for employers who sought to disguise "impermissible reasons" for dismissal.

"While it is true that an employer may rightfully demand that its employees fulfil their contractual obligations, employers should not hide behind such requirement when facing issues of discrimination," he said.

Unfair dismissal

The case relates to the unfair dismissal of Gary Allpass, 48, by Mooikloof Estates in Pretoria, which owned an equestrian centre.

Mooikloof Estates, which has since sold the centre, was ordered to pay Allpass a year's salary and cover legal costs of the action he brought against them.

Handing down judgment, Judge Urmila Bhoola noted that the dismissal of employees because of their HIV status was widely acknowledged as discrimination, unless the employer could show that being free of HIV was an inherent requirement of the job.

Botes said the Labour Court and Labour Appeal Court had come down hard in the past, "as it did in this judgment", on employers seeking to disguise impermissible reasons for dismissal.

"Whether the issue is the HIV status of an employee or the employee's trade union affiliation, employers should expect no leniency from the courts where the true reason for the dismissal of the employee is one that is prohibited by law, which the employer seeks to disguise by dismissing the employee for an ostensibly fair reason," Botes said.

Motive behind the dismissal

"In the current case, the employer intended dismissing the employee for misconduct relating to his alleged dishonesty at the interview.

"The court rejected the employer's testimony in this regard and held that it was clearly not the true reason for the dismissal.

"The employer's discomfort with the employee's HIV status and its concerns about his health as result of his status was found to be the real motivation for the employee's dismissal."

Meanwhile, a case study concluded by absenteeism management specialists CAM Solutions (CAMS) on the impact of HIV/Aids on absenteeism and productivity at a manufacturing company found that HIV positive staff on a wellness programme were absent from work less often than employees who were HIV negative.

The case study proved that for every 1% reduction in absenteeism, there was a corresponding productivity increase of 4%.

Health of employees

"This study clearly suggests that companies with wellness programmes in place are improving not only their entire absenteeism rates (and therefore their productivity), but also the health of their employees, said CAMS chief executive Johnny Johnson.

A total of 621 employees were involved in the study.

Johnson said that the research concluded that the confirmed HIV positive employees not on a wellness programme exhibited an absenteeism rate of 3.86%, calculated by dividing the number of days employees are absent by the number of days they are supposed to be at work.  

Those with confirmed HIV negative status exhibited an absenteeism rate of 3.21% during the same period.

"HIV positive employees who are on a wellness programme demonstrated an absenteeism rate of only 2.56%, the lowest in the study.

"We can therefore conclude that HIV positive staff on a wellness programme take sick leave less often than their HIV negative colleagues," Johnson said.

Johnson said staff on a wellness programme benefited from antiretroviral drugs and other medical attention, as well as from receiving nutritional supplements to boost their immune systems.

"The fact that they are so well-cared for also means that they are probably more motivated to go to work because their employers are making a significant impact on their quality of life by offering them the tools they need to improve and maintain their health."

(Sapa, February 2011)

Read more:

Fired HIV employee wins labour court bid

ARV doc wins case against health dept

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