| PRIVATE
SECTOR
What does the law say about HIV/AIDS in the workplace?
In this issue of share, we look at how South
African labour legislation relates to dismissal.
According to the Labour Relations Act 66 of 1995,
an employer may only dismiss an employee for substantively
fair reasons. These reasons will be fair when
they relate to the employee's conduct or incapacity,
or are based on the employer's operational requirements
(Section 188).
In the case of an employee who has HIV, the result
of such a disease might well be that the employee
becomes incapacitated. The employer, in dismissing
such an employee, will have to argue that the
dismissal was based on the incapacity of the employee
due to ill health or injury. In this regard, one
should take into account the Code of Good Practice,
Schedule 8, which provides guidelines in cases
of dismissals for incapacity due to ill health
or injury.
Many people with HIV can live healthy, productive
lives for a number of years, and an inability
to perform properly might only become manifest
at a later stage of the disease. Thus employers
will not be able to argue that they are dismissing
an HIV-positive person for incapacity when the
person is still fully capable of performing his
or her work. As the Constitutional Court made
clear in Hoffmann v SAA (2000) 21 ILJ 2357 (CC),
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-positive status.
An employer who dismisses an employee in these
circumstances will be guilty of discriminating
against the employee(s) on the grounds of HIV
status. This was explained in part I of this series
which appeared in the previous issue of share
(September 2003). However, where an employee does
begin to experience debilitation and incapacity
as a result of HIV-infection to the extent that
he or she is incapable of performing his or her
job, an employer has the right to dismiss the
employee on grounds of incapacity.
An employer may not need to resort to dismissal
very often, since a person who is experiencing
the detrimental effects of HIV or full-blown AIDS
might voluntarily leave his or her employment.
When an employee is becoming incapacitated through
HIV, an employer may have to resort to dismissal
if the employee insists on staying on at work.
It is generally recognised that an employer has
a managerial prerogative to set the standard of
performance required in the business. In this
regard, a court may not want to interfere with
an employer who reasonably demands a certain level
of work. But schedule 8 of the Code of Good Practice
does state that an employer should accommodate
employees who are ill or injured. At the same
time, an employer will have good reason to dismiss
an employee who has become incapacitated by HIV,
or who is not able to perform as required because
they have full-blown AIDS.
LINKS
If you have access to the Internet, you can read
further about employment law and HIV/AIDS at www.labour.gov.za.
If you have specific comments, ideas, and suggestions
on private sector matters, or if you would like
to contribute to this publication, please contact:
Jo-Ann du Plessis
e-mail: duplessisj4@nu.ac.za
Post: HIVAN (Centre for HIV/AIDS Networking),
Private Bag 7, Congella, 4013
Tel: +27 (0)31 260 4653
Fax: +27 (0)31 260 4623
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