HIV status, discrimination and compensation

An employee failed to state his HIV status and was dismissed. Was this fair?

Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre [2011] 5 BLLR 462 (LC)
The employee, Gary Allpass, was employed as stable yard manager and horse riding instructor.  His letter of appointment confirms his appointment commencing on 1 November 2008 “on a temporary basis for a period of three months, where after the position will (sic) reviewed.”  His duties were, inter alia:
  • managing and overseeing the Mooikloof Equestrian Centre in close cooperation with Aletta Herbst;
  • horse grooming, care and supervision (24 hours);
  • crisis management of horses and clients;
  • assisting the veterinarian; and
  • reporting to Dawie Malan on all aspects.
In his pre-employment interview Allpass stated that he was in good health, had a bond over an immovable property, was a homosexual in a same-sex civil union and that he was agnostic. His responses were not seen in an unfavourable light – in fact, the employer had already employed a same-sex couple.  A week after the employee’s appointment, he and the members of the other civil union were asked to complete “personal particulars” forms in which they were asked to list allergies and chronic medications they were taking. The employee disclosed that he was HIV positive and was taking retroviral drugs. The day after he handed in his form, he was told that he had been dismissed – “the basis on which you are being dismissed from your temporary appointment at the Mooikloof Equestrian Centre is because you were dishonest in the interview.”
Inter alia, the court had to determine whether his dismissal was automatically unfair, or alternatively procedurally and/or substantively unfair, and if so, the appropriate measure of compensation to which he is entitled.
The court found that the real reason for the employee’s dismissal was the fact that he had not disclosed his HIV status.
That being the case, the employee’s dismissal was automatically unfair, and the employer is burdened with an evidentiary burden to prove that the discrimination was justified, meaning that employee’s termination was justified based on an inherent job requirement. The employer failed to do this.
With regard to relief, the court noted that the compensation for an automatically unfair dismissal must be “just and equitable in all the circumstances, but not more than the equivalent of 24 months’ remuneration”. Referring to Davis AJA in Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) the court quoted that compensation for an automatically unfair dismissal should be no less than the amount the employee would have been entitled to receive if reinstatement had been sought and should reflect the serious nature of the transgression. The fact that the employee was employed on a three month temporary employment contract, subject to review at the end of that period, was taken into consideration.
The employee was granted compensation equivalent to 12 months’ remuneration for his automatically unfair dismissal.

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