Allpass v. Mooikloof Estates (Pty) Ltd.

Case No. JS178/09; [2011] ZALCJHB 7; 2011 (2) SA 638 (LC); [2011] 5 BLLR 462 (LC); (2011) 32 ILJ 1637 (LC)
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The Applicant, Allpass, was hired as a stable yard manager and horse-riding instructor for the Respondent, Mooikloof Estates. He had 27 years of experience in horse riding, instructing and stable yard management. At the time of his hiring, the Applicant had been living with HIV for 17 years and was in a same-sex civil union.

During his interview for the position, the Applicant stated he was in good health. According to his medical expert, the Applicant’s CD4 count was exceptionally low and his viral load was undetectable; he was said to be in good health and able to perform the duties required of him at all times. Following his hiring, the Applicant filled out a personal particulars form on which he indicated, among other things, that he was HIV-positive and taking antiretroviral medicines, that he was allergic to penicillin, and that he suffered from asthma and deep vein thrombosis. The Respondent only asked three of its 30 employees to complete such a form, and all three were men who had sex with men.

The Applicant was dismissed several days after submitting his completed personal particulars form. The dismissal notice claimed the Applicant had not told the truth about his health during his interview. It further stated that he was “severely ill” and that he would “not be able to complete his duties.” A subsequent final dismissal notice stated the reason for his dismissal as “fraudulent misrepresentations.” The Respondent later claimed the Applicant was dismissed due to his allergy to penicillin, which the Respondent claimed motivated the Applicant to seek assistance when administering a required depocillin injection to a horse during his employment.

The Applicant claimed his dismissal was “automatically unfair” on the grounds of his HIV status under the Labour Relations Act (the LRA). In the alternative, he claimed his dismissal was substantively and procedurally unfair under the LRA. The Applicant further claimed the manner of his dismissal violated his constitutional rights to privacy and dignity. The Applicant sought relief for unfair discrimination on the grounds of HIV status pursuant to the Employment Equity Act, 55 of 1998.

The Court stated that the Applicant's termination was "automatically unfair dismissal" due to unfair discrimination on an arbitrary group, i.e., his HIV status. The Court noted that the personal particulars form through which the Respondent learned of the Applicant’s HIV status was only given to three out of 30 of the Respondent’s employees, all three of whom were men who had sex with men. The Court held that requiring the Applicant to fill out the form “cannot be said to have been a mere administrative exercise.” Rather, the Court stated that “[a]t the very least it would appear to be an attempt to extract information about the applicant’s HIV status, and would therefore constitute unfair discrimination based on HIV.” The Court further noted the “emphasis placed by the [Respondent] on the HIV issue” during the confrontation that resulted in the Applicant’s dismissal.

The Court declared that the “inescapable facts are that the applicant had no medical or physical impediment preventing him from performing his duties.” It stated that the misconception that a person living with HIV is severely ill “emanates from a general stereotype about all people living with HIV . . . which results in loss of dignity and a sense of self.” The Court thus held that the evidence established that the “real reason” for the Applicant’s dismissal was his HIV status. His dismissal was therefore “automatically unfair” under the Labour Relations Act.

The Court explained that the inability to perform “an inherent job requirement” was an absolute defense to both the automatically unfair dismissal claim and the unfair discrimination claim. The Court, however, declined to accept the Respondent’s assertion that reason for the Applicant’s dismissal was his inability to administer depocillin to a horse, which it claimed was a result of penicillin allergy.

The Court noted that there was an “absence of risk assessment and objective justification that [the Applicant] would be rendered unable to perform his duties” as a result of his allergy. Instead, the Respondent relied exclusively on the testimony of another employee who lacked medical and veterinary experience. Moreover, the Court noted that the Respondent had not mentioned the Applicant’s allergy during his dismissal or in either of the dismissal notices. Instead, it was first mentioned two years after the cause of action arose in a reply to a request for particulars. The Court thus held that “the penicillin defence was ‘a thin veil’ designed to disguise the real reason for the dismissal.”

The Court held that the Applicant had proven an entitlement to relief “arising from his unfair dismissal for a discriminatory reason.” It stated that the unfair discrimination encompassed “damages for loss of dignity and privacy in that [the Applicant] was expected to disclose his HIV status.” The Court awarded the Applicant compensation “in the sum of twelve months’ remuneration, reflecting both restitution as well as a punitive element for unfair discrimination on the grounds of HIV status.”

“[54] … The notion that HIV is synonymous with serious illness is however not unheard of. It emanates from a general stereotype about all people living with HIV, and which results in loss of dignity and a sense of self. Judge Edwin Cameron J in his poignant memoir “Witness to AIDS” described the importance of being able to work in a non-discriminatory environment on the dignity of people living with HIV and AIDS and dispenses with the notion that they are per se ill and unsuitable to participate in productive work. The misconception therefore that someone with HIV is so ill that he should not be employed assails the core of that person’s dignity and results in the unfair and unconstitutional condemnation to “economic death” as referred to by Ngcobo J in Hoffman (supra).”

 

“[60] The penicillin defence moreover confuses inherent and essential job requirements. I am therefore in agreement with the applicant’s submission that the penicillin defence was “a thin veil” designed to disguise the real reason for the dismissal. Had it indeed constituted a legitimate and genuine requirement of the applicant’s job it would have warranted specific mention in the detailed job description provided to the applicant or specifically canvassed with him in the interview, or at the very least raised by Malan in the confrontation with him. It was moreover not mentioned in either of the dismissal notices”

 

“[68] The respondent accused the applicant was of “tactical opportunism” in that he deliberately exploited his HIV status. It also challenged his credibility. It was put to him in cross-examination that he tended to overreact because of his HIV status, and his refusal to sign his final notice of dismissal was a manifestation of this conduct. …

[69] This accusation appears to emanate from a stereotype about homosexuals and people with HIV – it is akin to attributing to women the characteristics of being over emotional or accusing all black people of being lazy. It is a manifestation of homophobia and it is sad that despite more than a decade of constitutional protection of privacy and anti-discrimination on these very grounds, our society is still seeped in these misperceptions that impact on the livelihood and dignity of human beings.”

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