Irvin and Johnson Ltd. v. Trawler and Line Fishing Union, et al.

(4) BLLR 379 (SALC)
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The Applicant, Irvin and Johnson Limited, wished to arrange for the voluntary and anonymous HIV testing of the more than 1,100 employees in its trawling division. The testing was to be based on the principle of informed consent and accompanied by pre- and post-test counselling. However, the age and job category of the tested employee was to be recorded for purposes of generating useful statistics. The Applicant asserted that it required information on HIV prevalence in its workforce:

“[T]o assess the potential impact of HIV/AIDS on the workforce; to enable the applicant to engage in appropriate planning so as to minimise the impact of HIV/AIDS mortalities and HIV/AIDS related conditions on its operation; to enable it to put in place adequate support structures to cater for the needs of employees living with HIV/AIDS; and to facilitate the effective implementation of proactive steps to prevent employees from becoming infected with HIV/AIDS.”

The Applicant had already instituted a variety of HIV education and awareness programmes in order to educate employees, offer psychological support and combat stigma. It had drafted and implemented a policy on HIV, arranged for the supply of condoms, and offered counselling for employees living with HIV. The Applicant stated that it was committed to a policy of non-discrimination against people living with HIV and it allowed employees living with HIV to continue working as long as they were able.

The Applicant sought an order declaring that such testing did not fall within the purview of section 7(2) of the Employment Equity Act 55 of 1998. Section 7(2) provides: “Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.” Section 50(4) provides that if the Labour Court finds that testing of an employee for HIV is justifiable, it may “make any order it considers appropriate in the circumstances,” including imposing conditions related to the provision of counselling and the maintenance of confidentiality.

The Court found that anonymous and voluntary testing for HIV is outside the pervue of section 7(2) of the Employment Equity Act. The Court stated that there were two grounds upon which the Applicant’s proposed HIV testing could be justified: the testing was to be anonymous and also voluntary.

The Court noted that section 7(2) of the Employment Equity Act was part of the chapter addressing the prohibition on unfair discrimination. It stated that the purpose of the chapter was “to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment.” The purpose of section 7 is thus to ensure that employers do not unfairly discriminate against an employee because he suffers from a particular medical condition. To reduce the likelihood of such discrimination, section 7 limits the circumstances in which an employer may ascertain an employee’s medical condition through testing.

The Court held that when employees are tested in a way that the employer is “unable to identify which employees are suffering from the medical condition in question, the risk of discrimination based on medical condition is absent.” Therefore anonymous testing falls outside the scope of section 7. The Court noted, however, that in effect, the Applicant’s proposed testing scheme to list age and job category, may have enabled it to identify HIV-positive employees. The Court observed that the number of employees in a particular age group was very small. The Applicant agreed to combine the group with another group in order to avoid the chance that it could deduce the HIV status of employees in the smaller group. The Court held that this adjustment was “sufficient to eliminate any reasonable possibility that an individual’s HIV status could be deduced from the statistical information.”

The Court stated that although its conclusion could be reached solely on the strength of anonymous testing, it was desirable to address the issue of voluntary testing. The Court defined voluntary testing as a situation where it is “entirely up to the employee to decide whether he or she wishes to be tested and where no disadvantage attaches to a decision by the employee not to submit to testing.”

The Court declared that it was “one thing to protect employees against compulsory testing,” but it was “quite another thing to place obstacles in the way of voluntary testing.” The Court noted that the Code of Good Practice: Key Aspects of HIV/AIDS and Employment (the Code) stipulates that workplace policies related to HIV should encourage voluntary testing. The Court further declared that a “climate of secrecy” was not conducive to combatting discrimination of employees living with HIV. On this point, the Code states that employers should implement mechanisms that “encourage openness, acceptance and support” for employees who voluntarily disclose their HIV status.

The Court also noted that the intention of the legislature could not have been to prohibit voluntary testing entirely, such as when an employee avails himself of health services provided by an employer at the workplace. The Court thus held that section 7 only applied to compulsory testing.

The Court further observed that if an employee determines that the benefit to taking advantage of medical testing offered by his employer outweighs the risk that the employer might use the information to discriminate against him, there is no public interest that militates against allowing him to do so. Moreover, if the employer nevertheless uses such information for discriminatory purposes, the employee still has recourse to the protections of the Employment Equity Act.

The Court thus held that anonymous and voluntary testing for HIV does not fall within the purview of section 7 of the Employment Equity Act. The Applicant therefore did not require the permission of the Court to conduct such testing.

"[23] Accordingly, when section 7(2) prohibits the “testing” of an employee to determine that employee’s HIV status, what it is prohibiting is a test which is designed to enable, or which will have the effect of enabling, the employer to ascertain the HIV status of an employee. And it is clear from the language of section 7(2) itself that the testing will be prohibited only if the employer is thereby enabled to determine the HIV status of a particular employee (the expression used is “that employee’s HIV status”)."

"[26] In the present case the testing does not have as its purpose to enable the applicant to ascertain the HIV status of any identifiable employees. Will this nevertheless be its effect? During argument I expressed to Mr Loxton (who appeared for the applicant) a concern that in certain of the job categories in the 16 to 25 age group the numbers were very small. In response, he stated that the applicant was willing to combine persons in the 16 to 35 age range in a single group for statistical purposes or alternatively to eliminate the distinction between shore­based and seagoing staff for purposes of receiving information on the age group 16 to 25. It seems to me that either of these adjustments would be sufficient to eliminate any reasonable possibility that an individual’s HIV status could be deduced from the statistical information."

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[28] I should explain what I mean by compulsory and voluntary testing. Compulsory testing is not limited to the case of taking a sample from an employee by physical force. In the absence of consent, such conduct would amount to an assault, and it would not require any statutory provision in order to render it unlawful. By compulsory testing is meant, in this context, the imposition by the employer of a requirement that employees (or prospective employees – see section 9 of the Act) submit to testing on the pain of some or other sanction or disadvantage if they refuse consent. This is to be contrasted with voluntary testing, where it is entirely up to the employee to decide whether he or she wishes to be tested and where no disadvantage attaches to a decision by the employee not to submit to testing."

"[34] … A person who does not wish to be tested and who is not required to undergo testing would have no need for the protection of a declaratory order and an interdict. A person who volunteers for testing would in the nature of things not seek redress. If such an employee were later to regret that he had volunteered for testing, I doubt whether he would have any ground for approaching the Court, given that he volunteered for the testing. If future testing remained voluntary he would require no ongoing protection. And as I have said, the Act does not appear to impose any penalty for a past infraction of section 7 per se, so that no effective order could be made at the instance of such an employee."

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