HIV and the workplace

Mbombela – Courts have been unanimous in their findings that human immunodeficiency virus (HIV)-positive employees and prospective employees are protected by the law from unfair discrimination.

Stats SA reflect that the total number of persons living with HIV in South Africa have increased dramatically from an estimated 4,25 million in 2002 to 7,52 million by 2018. It is estimated that 13,1 per cent of the total population of South Africa is HIV positive.

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In 2012 the Department of Labour published a Code of Good Practice on HIV and Aids, which has been signed by the Minister of Labour and gazetted. The Code seeks to assist with the elimination of unjustified discrimination in the workplace, by promoting a non-discriminatory workplace.

The primary provisions in the code include the creation of a safe work environment, which entails confidential HIV testing, fair employee benefits and dismissals, and the handling of grievance procedures in connection with the illness.

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The Employment Equity Act also ensures that no employer may require an employee, or an applicant for employment, to undertake a HIV test in order to ascertain that employee’s HIV status. Employers may acquire through a Labour Court application the approval for testing an employee during an application for employment and as a prerequisite for obtaining employee benefits.

In the case of (Hoffmann v South African Airways 2000 (2) SA 628), Hoffman was a HIV-positive work applicant. He applied for employment as a cabin attendant with South African Airways (SAA) and successfully completed a four-stage selection process as a prerequisite to attain employment. Hoffman was found to be a suitable candidate for employment, but had to subject himself to a medical examination as a condition of employment that involved drawing blood for a HIV/AIDS test.

Hoffman tested HIV-positive and was declared unfit for the job, but was otherwise physically fit to start employment with SAA. He challenged the constitutionality of the decision on the basis that it was unfair dismissal and violated his constitutional right to equality and human dignity. He was granted leave to appeal directly to the Constitutional Court.

The Court recognised that there are four stages to the progressive HIV disease and according to SAA’s own expert medical evidence, Hoffman had not developed full-blown aids. There was therefore no reason to assert that Hoffman could not perform the work of a cabin attendant competently and safely. SAA acknowledged that its policy could not be justified on medical grounds and that its refusal to employ Hoffman was unfair.

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The Court determined that those living with HIV were a vulnerable minority treated with intense prejudice by society. The Court concluded that the refusal to employ the job applicant violated his right to equality as envisaged by section 9 of the Constitution.

The court ruled that Hoffman having been denied employment because of his illness was entitled to be appointed to the position of cabin attendant, from the date of the court order.

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A person who has been discriminated against because of his or her HIV status can:

• Refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) within 30 days.
• If the matter is not resolved at the CCMA, you should refer the matter to the Labour Court within 90 days from the date of conciliation.

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