In a recent decision of the Labour Court in Allpass vs Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre, the Labour Court was called about to consider the fairness of the dismissal of an employee on account of his failure to disclose his HIV status during a pre-employment interview.

In this case, the employee had been appointed as a stable yard Manager by Mooikloof Equestrian Centre. Allpass was well qualified for the position as he had extensive experience of some 27 years, had represented South Africa in championship events, and was a qualified riding instructor. During his pre-employment interview with Mooikloof Estates he was asked about his health, whether he had debts and his marital status. Questions were also asked about his sexual orientation and he replied that he was a homosexual in a same sex civil union. Mooikloof did not regard this response in an unfavourable light and indicated that it had no problem with this as it already employed two other people who were involved in a same sex union.

Shortly after his employment, Allpass together with the other same sex couple were requested to complete a “personal particulars form”. This form required information concerning allergies, medication taken for allergies as well as any chronic medication taken by employees. Allpass disclosed in the form that he had asthma, deep vein thrombosis and HIV. He listed six allergies including an allergy to penicillin and listed various drugs that he was taking, including antiretroviral drugs for his HIV.

One day after the employer collected Allpass’ form, a confrontation ensued between a representative of the employer and Allpass culminating in Allpass’ dismissal. A few days later Allpass was told in writing that his dismissal was based on dishonesty as he had been asked during the job interview whether his health was good and he had replied in the affirmative but it now appeared that he was “seriously ill” and that he would not be able to do the work for which he was employed. A few days later the employer confirmed that the reason for Allpass’ dismissal was on account of his “fraudulent misrepresentation”. The contention essentially by the employer at the Labour Court was that Allpass had not been dismissed on account of his HIV status but because he had failed to disclose his illnesses during his interview. This clearly placed into issue whether there was in fact a duty upon the employee to disclose his HIV status, and other illnesses, given what the Employment Equity Act and the Code of Good Practice: Key Aspects of HIV/Aids in the Workplace states relating to the confidentiality of an employee’s HIV status.

During the Labour Court proceedings, evidence was provided by the employee that he had been living with HIV for about 18 years but because he followed an appropriate medical regime, his CD 4 Count and viral load were low and he was quite capable of performing the functions associated with the position to which he had been appointed.  

On the facts of the case, it transpired that the real issue in dispute and which the Court was required to decide on, was the actual reason for the dismissal of Allpass. In assessing the matter and on the evidence placed before it, the Court determined that:

  • It was only the three homosexual employees, including Allpass, who had been asked to complete the personal particulars form out of a staff of approximately thirty employees;
  • The employer’s conduct in asking only these three employees to complete a form of this nature was not a mere administrative exercise but clearly an attempt to extract information about the HIV status of these specific employees.

As such, it was found by the Court that this request constituted unfair discrimination based upon HIV. Moreover, there was no medical condition that stood in the way of Allpass performing the functions for which he had been appointed. In fact, it appeared that Allpass was more than capable of performing the functions associated with his job and hence there was no substance to the employers claim that Allpass was “seriously ill”. On this score, the Labour Court found that there was little doubt that the primary preoccupation of the employer was “Allpass’ HIV status” and this was the real reason or at least the prominent reason for the dismissal of Allpass. The Court found, on the evidence placed before it that the failure by Allpass to disclose his asthma, deep vein thrombosis and allergies had nothing to do with the employer’s conclusion that he was seriously ill or its suggestion that he had made a fraudulent misrepresentation to it at the pre-employment interview.

The Court went on to find that there were no inherent requirements of the job that entitled the employer to dismiss Allpass on account of his HIV status. There was no duty upon Allpass to disclose his condition at the pre-employment interview with the employer as this offended against the provisions of the Constitution and the Employment Equity Act. The Court, in determining the appropriate damages to award Allpass, had regard to the fact that he had only been employed on a three month contract but nevertheless found that the dismissal was automatically unfair on account of the unfair discrimination on the grounds of his HIV status. It awarded Allpass twelve months, as opposed to the maximum of 24 months, remuneration which the Court stated “reflected both restitution as well as a punitive element for the unfair discrimination of the employee”.

The Court reasserted employees’ rights to confidentiality and found that there was no responsibility upon an employee to tell his/her employer about his/her HIV status.