Dismissal based on a person’s HIV status

MBOMBELA –  Employees are specifically protected against discrimination by Sections 187(1)(f) of the Labour Relations Act and 6(1) of the Employment Equity Act.

They are, in essence, aimed at precluding dismissal on subjective grounds, which are not based on a justified argument such as a person reaching an agreed retirement age.

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Reasons which have nothing to do with “fairness” should not be taken into account in the assessment of an employee.

Discrimination based on impartial differentiation will not necessarily amount to unfair discrimination, but can be justified. So for example, differentiation centered on different wage levels for people who are senior in the workplace or have different skill levels is not unfair discrimination.

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Selection of employees for dismissal on most of the arbitrary grounds cited in subsection 187(1)(f) which includes, but not limited to, race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility will obviously be unfair.

Dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job. For example where continuity is a requirement for senior managerial positions. This is where it is expected that an employee be at his post at all times during work hours to perform operational important duties.

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However if you wish to dismiss an employee on the basis  of his incapacitating injuries, you may run into the anti-discrimination provision in the Employment Equity Act, which prohibits discrimination on the ground of a person’s disability. A person with the human immune-deficiency virus (HIV), can’t necessarily be dismissed based on the assumption that he/she will be unable to perform his/her workplace duties satisfactorily.

The Constitutional Court ruled in Hoffman v SAA, that HIV-positive applicants for employment who have not yet been incapacitated by the disease cannot be refused employment solely on the basis of their HIV ‘status’. The court accepted evidence that HIV-positive people may be vaccinated and as long as their white blood cell count remains above a certain level, they can still be eligible for employment.

If you believe that your dismissal is based on unfair discrimination, you can submit your complaint in writing, within 30 days from date of dismissal, to Commission for Conciliation, Mediation and Arbitration (CCMA).

For further information, you can submit your enquiries to the CCMA Nelspruit regional office, at 25 Samora Machel Drive, Sanlam Centre Building, Seventh Floor, Nelspruit, with contact number: 013-752-2155.