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[2011] ZALCJHB 7
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Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrain Centre (JS178/09) [2011] ZALCJHB 7; 2011 (2) SA 638 (LC) ; [2011] 5 BLLR 462 (LC); (2011) 32 ILJ 1637 (LC) (16 February 2011)

Reportable
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case no.: JS178/09
In
the matter between:
GARY
SHANE ALLPASS
…..............................................................................
Applicant
and
MOOIKLOOF
ESTATES (PTY) LTD t/a
MOOILKLOOF
EQUESTRIAN CENTRE
…...................................................
Respondent
JUDGMENT
BHOOLA J:
Introduction
[1] In claim A the
applicant seeks relief arising from his alleged automatically unfair
dismissal on the grounds of his HIV status
in terms of section
187(1)(f) of the Labour Relations Act, 66 of 1995 (“the LRA”).
In the alternative, the applicant
pleads that his dismissal was
substantively and procedurally unfair in terms of section 188 of the
LRA. In claim B he seeks relief
arising from unfair discrimination on
the grounds of his HIV status as proscribed by section 6(1) read with
section 50(2)(b) of
the Employment Equity Act, 55 of 1998 (“the
EEA”).
Common cause material
facts
[2] On 28 October 2008
the applicant was appointed by the respondent as Stable Yard Manager
and horse riding instructor for the
Mooikloof Equestrian Centre (“the
Centre”). The respondent is the developer of Mooikloof Estates,
a residential estate
on which the Centre is based. It owned and
managed the Centre (which has since been sold), which consisted of a
horse riding school
and stables at which horses owned both by the
respondent and private clients were kept.
[3] The applicant’s
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”.
The
terms of his employment included remuneration at R12000.00 per month
as well as accommodation on the respondent’s premises.
A
detailed job description accompanied the appointment letter and
defined his duties as
inter alia
:
managing and overseeing
the Mooikloof Equestrian Centre in close cooperation with Aletta
Herbst (“Herbst”) ;
horse grooming, care and
supervision (24 Hours);
crisis management of
horses and clients;
assisting the
veterinarian; and
reporting to Dawie Malan
(“Malan”) on all aspects
.
[4] The respondent
announced his appointment in a notice dated 3 November 2008 to all
stablers, pupils and riders, listing the applicant’s
27 years’
experience in horse riding, instructing, stable yard management and
judging of dressage competitions. The notice
referred to his
impressive curriculum vitae and achievements, which included,
inter
alia,
representing South Africa in dressage championships as well
as being a qualified South African National Defence Force (“SANDF”)

riding instructor. Prior to taking up the appointment the applicant
was self-employed and resided in the Western Cape but travelled
to
Gauteng occasionally on behalf of private clients. He but relocated
when he was notified of his appointment unofficially by
Herbst.
[5] In his pre-employment
interviews the applicant was asked about
inter ali
a his
health, whether he had any significant debt and his marital status.
He stated that he was in good health, that he had a bond
over an
immovable property and that he was married. In reply to a question
about his religious affiliation he stated that he was
agnostic. A
question concerning his sexual orientation arose to which he replied
that he was homosexual and was in a same - sex
civil union. Malan did
not regard his responses in an unfavourable light and indicated that
the respondent had no problem with
this and already employed a same
sex couple, Aletta and Magda Herbst.
[6] The applicant has
been living with HIV for some 18 years. He commenced a regime of
medication and treatment since his diagnosis
when he was informed he
had only a few months to live. His evidence and that of his medical
expert was that he has consistently
adhered to a proper treatment
regime and has at material times been and remains in good health.
According to his medical expert,
and which evidence was unchallenged,
his CD4 count at the material time was exceptionally low and his
viral load was at such a
low level as to be undetectable. He was said
to be in excellent health and able to perform the duties required of
him at all material
times.
[7] On 10 November 2008
the applicant, Herbst, and her spouse (who had been employees of the
respondent for a number of years),
were requested to complete a
Personal Particulars Form (“the PPF”). The PPF required
information
inter alia
concerning allergies as well as
medication taken for these allergies, as well as chronic medication
taken by the employee. The
applicant struck out the words “
medikasie
wat daarvoor geneem word”
and wrote in the word “
illnesses
”
which he listed as asthma, DVT (“deep vein thrombosis”)
and HIV. He listed six allergies including penicillin
and listed his
chronic medication as Warfarin, a blood thinning medication for DVT
and Kaletra and Truvada, which are antiretroviral
drugs.
[8] On or about 12
November 2008, Malan collected the applicant’s PPF. The
following day a confrontation ensued between Malan
and the applicant
during which the applicant was dismissed and instructed to vacate the
premises. The applicant did not leave immediately
as he had not
received formal notice of dismissal nor his salary, and his personal
belongings (including medication) were on the
premises. He also had
no alternative accommodation.
[9] In a dismissal notice
dated 14 November he was advised as follows:
DISMISSAL : GARY
ALLPASS
I refer to our
conversation yesterday the 13
th
of November 2008 and place
the following on record :
In the job interview
held with you in October 2008 you were told that the job at
Mooikloof Equestrian Centre demands long hours,
working nights and
weekends. You were subsequently asked whether your health is good
whereupon you replied that, apart from your
ankle injury sustained
during horse riding, your health was excellent and that nothing will
prevent you from doing your job thoroughly.
From the
questionnaire handed to me on the 12
th
of November,
regarding your personal details, it became clear that you were not
telling the truth in the interview. It became
clear that you are
severely ill and that you will not be able to complete your duties
as this became evident in a few incidents
that occurred in the few
days that you were working at the equestrian centre.
When you were
confronted by me on the 13
th
of November, you confirmed
that you made a mistake by not telling the truth in the interview.
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.
Your salary will be
paid up to the end of today after you have vacated the house and the
premises”.
[10] A further incident
occurred on 18 November 2008 when the applicant was forcibly removed
from the respondent's premises and
verbally abused by a security
manager at the estate. Following the intervention of his attorneys of
record he was given until 12:00
the next day to vacate the premises.
[11] The applicant’s
dismissal was confirmed in a final notice dated 19 November 2008 and
which accompanied his salary payment.
The notice declared the reason
for his dismissal as “
fraudulent misrepresentations
”.
It recorded that he did not qualify for one weeks’ notice on
account of the reason for his dismissal, but offered
him the
equivalent amount as a “
gesture of humanity
”. The
applicant refused to sign the acknowledgement of receipt accompanying
the notice.
[12] The applicant
referred a dispute arising from his dismissal to the Commission for
Conciliation, Mediation and Arbitration (“CCMA”)
on 17
November 2008. The dispute was conciliated on 17 December 2008 under
case number GATW 12276-08 and a certificate of outcome
was issued
referring the matter to this court.
Issues to be
determined
[13] Although the
pre-trial minute conflates issues of lawfulness and fairness the
legal issues can be determined to be the following
:
(a) Whether the dismissal
of the applicant was automatically unfair, or alternatively
procedurally and/or substantively unfair,
and if so, the appropriate
measure of compensation to which he is entitled.
(b) Whether the applicant
was unfairly discriminated against on the basis of his HIV status and
if so, the appropriate relief to
which he is entitled.
The evidence led
[14] The respondent
assumed the duty to begin and called Malan, followed by Herbst as its
expert witness.
Dawie Malan
[15] Malan managed the
Centre under the authority of his father, Hendrik Malan (“Malan
senior”). He testified that only
one interview was held with
the applicant at which both he and his father were present. The
applicant relied in his statement of
case on two interviews, the
first being on his birthday (22 October) when Malan senior
congratulated him and the second with Malan
alone on 27 October 2008.
However, it became common cause during the trial that an interview
took place on 27 October 2008 at which
both Malans were present. At
the interview the applicant was asked about his state of health and
confirmed that he was in good
health.
[16] He confirmed that
the decision to appoint the applicant had been taken immediately
after the interview, and that he had been
impressed by the
applicant’s considerable experience with horses and the
management of stables. At the interview the requirements
of the job
description were canvassed with him, including aspects of the job
involving the general care, supervision, grooming
and management of
horses on a round-the-clock basis at the Centre. Malan emphasised
that this required the applicant to reside
on the premises, and that
he was expected to attend to sick horses until the vet arrived, and
this included administering antibiotic
injections to the horses
should this become necessary. His evidence was that the applicant’s
job was “
very hard and unforgiving
” since a horse
could fall ill during the night and that the horses were very
valuable to the respondent particularly those
stabled on behalf of
private clients.
[17] Malan confirmed that
even though the Herbsts had been in the employ of the respondent for
several years they were only asked
to complete the PPF simultaneously
with the applicant. The reason for this was that according to the
respondent's bookkeeper, Rina
van Zyl (“Van Zyl”), their
forms were missing from their files. Malan testified that the
applicant’s completed
PPF had been brought to him by Van Zyl
and that she had pointed out the allergies and illnesses recorded
therein. Malan stated
that his reaction upon noticing the illnesses
disclosed by the applicant was to inform Malan senior, and they
formed the view that
the applicant had been dishonest in not
disclosing this information in his interview, and had therefore
breached their trust. The
decision was made to dismiss him “there
and then”.
[18] The conclusion that
the applicant was seriously ill and unable to perform his duties was
bolstered by two incidents which occurred
between the interview and
the disclosures in the PPF. The first incident related to information
he had received from Herbst that
the applicant had soiled his pants
while giving a riding lesson and had asked her to take over the
lesson. There was a dispute
of fact about the exact period of time
that he was unavailable as a result. Malan suggested that he had not
been able to teach
for the rest of the day while the applicant
testified that he was only away for about 15 minutes, which was half
of a normal lesson.
The first incident occurred a few days after the
applicant had commenced employment. Herbst also informed him of a
second incident
where the applicant refused to inject a horse because
of his allergy to penicillin. Malan had no direct knowledge of the
incidents
and relied on the information from Herbst, who had conceded
that she had no knowledge of what caused the first incident.
[19] Malan testified that
the respondent was not the kind of employer that discriminated
against employees and had for many years
employed the Herbsts knowing
they were a lesbian couple. He had appointed the applicant despite
his sexual orientation and had
conveyed to him that he despised
discrimination. He acknowledged that discrimination based on sexual
orientation existed in certain
areas but remained adamant that the
reason for the applicant’s dismissal was his dishonest
non-disclosure of his many illnesses.
His evidence was that the
applicant had lied in the interview because “
when you look
at it from an employer's point of view, he was ill and he did not
declare it”.
He conceded that the applicant had not been
asked specific questions about medical conditions or allergies and
had simply been
responding to a general question about his health.
When he was asked whether he believed the applicant had a duty to
disclose his
HIV condition to his prospective employer he replied :
“
I don't think he was under duty but he should have
disclosed his HIV status”.
His evidence was that when one
considered all the illnesses combined it meant that the applicant was
“
not in good health
”. He testified that if the
applicant had only HIV and had failed to disclose this it would have
been understandable, but
in the context of three illnesses it meant
he was not well and it was unfair not to disclose this to a
prospective employer. His
view was that it would be dishonest for
someone with HIV to claim good health, not because it implies that he
is unhealthy but
because it is a realistic factor impacting on his
health. He said that the applicant should have known why the question
was being
asked of him and he should have answered differently. Malan
conceded that if the applicant suffered only from asthma and this was

under control it would not have been a work - related issue. Likewise
he did not understand the impact of DVT on employment since
he was
not a medical expert, but was clear that HIV was "
more
serious
". Malan was asked in cross examination to consider
the hypothetical situation in which the applicant had only one
condition
namely that he was HIV positive but failed to disclose it
and whether he would have considered that to be dishonest. His reply
was "
yes, it would be dishonest to say that his health was
fine and not say that he was HIV positive”.
He said “
this
is not only my view but the view of a lot of employers that this
person is not healthy”
, although conceding that this
assessment would best be left to a medical expert.
[20] Malan’s
evidence was that upon receipt of the PPF he telephoned the applicant
and arranged a formal meeting with him.
As a result of a lack of
privacy occasioned by the presence of clients in the office at the
Centre, they met in the parking area
about 30 to 40 metres away from
the office. It became common cause that the meeting took place in the
afternoon, not in the morning
as the applicant had originally
recalled. Malan showed the applicant his PPF and asked him about the
various illnesses he had disclosed.
The applicant admitted that he
had been living with HIV for 17 years and had suffered from asthma
and DVT. Malan pointed out the
discrepancy with the undertaking he
gave in the interview that he was in good health and the applicant
admitted that he had made
a mistake. Malan then told him that the
respondent could not work with someone who had lied, at which point
the applicant asked
whether he was being fired. Malan replied that
this would have to be done formally. The applicant then got angry and
ended the
meeting by running down the stairs of the parking area,
threatening to tell everyone that he was being fired because of his
HIV
condition. Malan then informed Herbst and asked her to have him
vacate the Centre. The applicant sent Malan an SMS message stating

that he would only leave upon receipt of a formal notice of
dismissal, following which Malan prepared the notice of 14 November.
[21] Malan denied that
the applicant had not been afforded a reasonable opportunity to state
his case as he had ended the meeting
abruptly. Although he conceded
that the meeting lasted no longer than five minutes and he could have
subsequently convened a formal
hearing or a meeting under less heated
circumstances, he saw no reason to do so where the applicant
subsequently resorted to victimising
the respondent and “sabotaging”
clients.
[22] Malan disputed that
HIV was the reason for the applicant’s dismissal and insisted
that the respondent was aggrieved by
his failure to disclose his
illnesses. He said that had the applicant disclosed his HIV status at
the time, he would have engaged
with him about properly managing the
condition in the context of his work. The respondent had good reason
to expect him to declare
his illnesses, and what was more important
was his inability to meet inherent job requirements as a result of
his allergy to penicillin.
It was common cause that penicillin is
administered to horses as the antibiotic depocillin, and in cross
examination Malan conceded
that the latter could only be administered
when prescribed by a veterinarian. He was however unable to point to
any crisis occasioned
by the allergy during the applicant’s
short period of employment, and he could not rule out the concerns
raised by the applicant
(
inter alia
that Herbst understood the
temperament of the horse; she had commenced the course of treatment
prior to the applicant’s employment;
and the injection would
have had to be administered on the flank opposite to the one which
she had previously injected) as legitimate
reasons for refusing to
administer the injection himself. He had simply accepted what Herbst
had communicated to him about the
applicant’s refusal being due
to his penicillin allergy. He was unable to comment on applicant’s
evidence that he had
administered intravenous medication to horses on
numerous occasions, particularly during his national service in the
equestrian
division of the SANDF.
[23] Malan could not
confirm in cross examination that the intravenous administration of
penicillin had been stipulated in the applicant's
job description or
canvassed with him at the interview or subsequent thereto . His
evidence was that it did not require specific
mention as it was part
of the "wider perspective" of managing horses. He was
unable to confirm that an allergy to penicillin
was contra-indicated
for its administration to a horse and had simply assumed this as a
result of the communication from Herbst.
He conceded that his major
concern was the breakdown of trust and that when he saw the
applicant’s PPF he decided to dismiss
him immediately.
[24] Malan denied that
the respondent was involved in the applicant’s eviction from
the premises or that he had issued the
instruction to Hattingh, who
he said was not employed by the respondent but was head of security
appointed by the homeowners’
association on the Mooikloof
residential estate. The Malans resided on the estate and he was
required to notify them of the applicant’s
dismissal but he was
uncertain whether he or Herbst did so.
Aletta Herbst
[25] Herbst confirmed
that the meeting at which the applicant was dismissed lasted only
about five minutes and that applicant stormed
down the steps saying
that Malan had just fired him because of his HIV.
[26] She confirmed that
it was the first time she had been asked to provide the medical
information sought on the PPF, and that
although her spouse also had
an allergy to penicillin she did not work directly with the horses.
[27] In regard to the
penicillin incident she testified that it occurred during the first
weekend of the applicant being on duty.
It was her weekend off and
the applicant asked her to help him out with injecting a horse
because he had an allergy to penicillin.
She conceded that she had
commenced the treatment of the horse the previous Friday and
(although she initially disagreed) conceded
that it was a requirement
that injections were administered on alternative flanks to avoid
internal bleeding. She agreed with the
precautions advocated by the
applicant in regard to the risks involved in administering
intravenous medication to horses and conceded
that she was not aware
of any guideline that would prevent someone who was allergic to
penicillin from injecting a horse with depocillin.
She also conceded
that she was not aware of any riding school that stipulated as an
inherent job requirement the non-allergy to
penicillin and she was
also not aware of any person having been disqualified from working
with horses on this basis. She insisted
that the applicant's reason
for seeking her assistance was because he had an allergy although she
could not dispute that he had
administered intravenous medication to
horses on numerous occasions despite this. She conceded that he was
justified in taking
precautions given the risks of working with
horses. Although she had numerous scars from injuries she had
sustained in her work,
the applicant did not have any.
The Applicant’s
evidence
[28] The applicant
testified that he had openly declared his HIV status and it was a
matter of public record. It was known in Western
Cape equestrian
circles and reports about his effective management of this condition
had appeared in various press reports, including
the Rapport, a
national Afrikaans Sunday newspaper. It is common cause that the
Malans are Afrikaans speaking and the main office
of the respondent
is in Pretoria, which is still associated with conservatism. He had
also disclosed his status to his various
private clients, many of
whom were based in Gauteng, so that they were aware of the risks and
could exercise an informed choice
as to whether to use his services
as a riding instructor. He had never had a client refuse to employ
him on this basis. He had
developed a public reputation as a
motivational speaker and an inspirational figure supporting people
living with HIV and promoting
non-discrimination. He had been warned
by the Herbsts that the Malans were “conservative and difficult
people” and
this was the reason why he was guarded in the
interview when he was asked questions about his sexual orientation,
marriage and
religious affiliation. He was aware of his
constitutional right not to disclose his HIV status to his
prospective employers and
had not done so at the interview because of
the warning as well as his fear of the implications of doing so.
[29] When he completed
the PPF he was under the impression that it was for use in the Centre
only and was not aware that it would
come to the attention of the
Malans. He inserted the term “illnesses”, which should
more correctly have referred to
medical problems or conditions since
he was in good health despite being diagnosed with HIV. He had only
listed asthma as an illness
because on two earlier occasions when he
commenced treatment for HIV, he had suffered an asthma attack as a
reaction to AZT, an
HIV drug. Although it was not a chronic condition
he felt it necessary to make his employer aware of his full medical
history.
DVT was likewise related to one incident which occurred in
2006 and had since then been controlled by regular medication. His
penicillin
allergy had manifested in the form of a skin rash which
lasted about ten days when he had at been given a penicillin
injection
in error. These conditions had never affected his work as a
rider, instructor or stable manager and accordingly he had been
honest
when he said in the interview that he was in good health. He
attributed his excellent state of health to his commitment to a
proper
treatment regime involving health assessments, taking HIV
medication regularly and working hard in an outdoor environment. He
was
often up from about 5:00 checking on the horses and worked long
days managing the grooms, the stable yard and attending to clients.
[30] On 13 November 2008
Malan was angry when he arrived at the stables and asked to speak to
him. He denied that Malan had called
to pre-arrange the meeting and
said that had this been the case he would have ensured that an
appropriate venue was available.
They went to the parking area where
Malan accused him of lying because he had not disclosed in the
interview that he had HIV, dismissed
him and ordered him to leave the
premises immediately. Malan did not mention asthma, DVT or the
penicillin allergy, and appeared
to be mainly concerned about his
HIV. He became angry and upset, and stormed off threatening to tell
everyone he had been dismissed
for HIV. He denied having admitted to
Malan that his failure to disclose during the interview was a
mistake. His dismissal notice
was issued to him by Herbst, who
reported to him, and his humiliation was compounded by the fact that
no steps were taken to ensure
that at least this communication was
given to him in private or at his residence instead of the office, or
was placed in a sealed
envelope to ensure confidentiality.
[31] On 18 November 2008,
following his dismissal, he was confronted by Phillip Hattingh, who
said he was acting on instructions
to throw him off the property. He
was not allowed to contact his attorney and Hattingh summoned a
member of Coin Security (known
as Wepenaar) to assist with his
removal, referring to him in the most derogatory terms as a “moffie”
and “vagrant”
.
He ordered the latter to place him
in the “dog cage” of the vehicle and remove him from the
respondent’s premises.
Wepenaar then drove him off the property
and he remained outside for over two hours until he was able to
arrange for his attorney
to contact the respondent. He believed that
Hattingh could not have obtained information of his being homosexual
and his homeless
status (which is implied by the derogatory use of
the terms “moffie” and “vagrant”) from anyone
other than
the Malans.
[32] He confirmed that he
was able to and could have administered the depocillin injection but
asked Herbst as she was available
and had commenced the course of
treatment of the horse. It was his first weekend on duty and he knew
that injections had to be
administered on alternate flanks to avoid
an adverse reaction from the horse. He worked long hours and was
comfortably able to
perform the duties listed on his job description,
which were the standard duties of a stable yard manager.
Prof. Francois Venter
[33] Prof. Venter was the
expert witness for the applicant. He confirmed that none of the
applicant’s allergies or medical
conditions affected his
ability to discharge his employment responsibilities and that his
state of health was excellent. His evidence
confirmed that there was
no factual basis for a conclusion that someone diagnosed as HIV
positive was severely ill. He confirmed
that in his extensive years
of practice he had never heard of a penicillin allergy being
contra-indicated for the purpose of administering
depocillin to a
horse intravenously, and that a number of safeguards were in place to
prevent accidental needle stick injury. He
was specifically asked
whether doctors or nurses are screened for penicillin allergies, to
which he replied in the negative. He
had never heard of an employment
policy excluding medical practitioners, who are at high risk, on
account of a penicillin allergy.
The applicable law
[34] The legal
prohibition against unfair discrimination in the workplace derives
from the equality right enshrined in section 9
of the Constitution of
the Republic of South Africa Act, 108 of 1996, which states:
“
(1)
Everyone is equal before the law and has the right to equal
protection and benefit of the law;
Equality includes the
full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken….”
[35] The LRA renders a
dismissal for a discriminatory reason automatically unfair unless it
can be justified on the grounds of inherent
job requirements :
section 187 (2)(a). Unfairness is premised on the reason for the
dismissal and section 187 (1) defines an automatically
unfair
dismissal as occurring when the reason is -
“
(f)
that the employer unfairly discriminated against an employee,
directly or indirectly, on any arbitrary ground, including, but
not
limited to race, gender, sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
political
opinion, culture, language, marital status or family responsibility.”
[36] Where a ground is
not specifically proscribed, such as HIV status, in the context of
dismissal it would have to be proven to
be an arbitrary ground. While
discrimination based on HIV status is expressly prohibited by the
Employment Equity Act, this
is not so in the LRA. However in
Bootes
v Eagle Inc System KZ Natal (Pty) Ltd
(2008) 29 ILJ 139 (LC)
Pillay J held that HIV was an arbitrary ground as envisaged in
s187(1)(f)
of the LRA. The learned judge noted that dismissal of
employees because of their HIV status was widely acknowledged as
discrimination
unless the employer could show that being free of HIV
was an inherent requirement of the job.
[37]
Section 6
(1) of the
Employment Equity Act specifically
prohibits discrimination in the
workplace in the following terms :“
No person may unfairly
discriminate, directly or indirectly, against an employee, in any
employment policy or practice, on one or
more grounds, including
race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual
orientation, age, disability,
religion, HIV status, conscience, belief, political opinion, culture,
language and birth”.
Section 6(2)
makes it clear that it is
not unfair discrimination to
-
(a)take affirmative
action measures consistent with the purpose of this Act; or
(b)distinguish,
exclude or prefer any person on the basis of an inherent requirement
of a job.
[38]
Section 11
of the
Employment Equity Act requires
an employee to allege a
prima facie
ground of unfair discrimination and places the onus on the employer
to prove that the discrimination was fair. The Labour Court
is
empowered to grant appropriate relief for unfair discrimination as
envisaged in
section 50(2)
as follows:
“
If
the Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order that

is just and equitable in the circumstances including-
a)payment of
compensation by the employer to that employee;
b)payment of damages
by the employer to that employee;
c)an order directing
the employer to take steps to prevent the same unfair discrimination
or a similar practice occurring in the
future in respect of other
employees;
d)an order directing
an employer, ….to comply with Chapter III as if it were a
designated employer;
e)an order directing
the removal of the employer’s name from the register referred
to in
section 41
; and
f)the publication of
the court’s order. ”
[39] The
Employment
Equity Act enjoins
the Court to have regard to relevant codes of
practice as well as international conventions. The Code of Good
Practice on the Key
Aspects of HIV and AIDS in Employment (“the
Code”) issued in terms of section 54 (1)(a) of the EEA endorses
the principle
of non-discrimination based on HIV status. The Code
contains detailed guidelines on disclosure and confidentiality and in
this
regard the following provisions are noteworthy :
“
5.3.10. In
accordance with both the common law and Section 14 of the
Constitution of South Africa Act, No. 108 of 1996, all persons
with
HIV or AIDS have a right to privacy, including privacy concerning
their HIV or AIDS status. Accordingly there is no general
legal duty
on an employee to disclose his or her HIV status to their employer or
to other employees.
7.2. Confidentiality
and Disclosure
7.2.1. All persons
with HIV or AIDS have the legal right to privacy. An employee is
therefore not legally required to disclose his
or her HIV status to
their employer or to other employees.
7.2.2. Where an
employee chooses to voluntarily disclose his or her HIV status to the
employer or to other employees, this information
may not be disclosed
to others without the employee’s express written consent. Where
written consent is not possible, steps
must be taken to confirm that
the employee wishes to disclose his or her status.
7.2.3. Mechanisms
should be created to encourage openness, acceptance and support for
those employers and employees who voluntarily
disclose their HIV
status within the workplace, including:
(i) encouraging
persons openly living with HIV or AIDS to conduct or participate in
education, prevention and awareness programmes;
(ii) encouraging the
development of support groups for employees living with HIV or AIDS;
and
(iii) ensuring that
persons who are open about their HIV or AIDS status are not unfairly
discriminated against or stigmatised.”
[40] South African
anti-discrimination legislation derives its mandate from
International Labour Organisation Conventions, including
C111
Discrimination (Employment and Occupation) Convention of 1958, which
prohibits workplace discrimination on a number of specific
grounds,
but does not proscribe HIV discrimination. More recently, the ILO
Recommendation concerning HIV and AIDS and the World
of Work 200 of
2010 has recognised the impact of discrimination based on real or
perceived HIV status and its increasing prevalence.
The imperative to
recognise discrimination based on real or perceived HIV status and to
incorporate this into Convention 111 was
emphasised by Jane Hodges in
“
Guidelines on addressing HIV/AIDS in the workplace through
employment and labour law”,
Paper No 3, Infocus Programme
on Social Dialogue, International Labour Office, Geneva, 2004.
Recommendation 200 provides:
“
10.
Real or perceived HIV status should not be a ground of discrimination
the recruitment or continued employment, or the pursuit
of equal
opportunities consistent with the provisions of the Discrimination
(Employment and Occupation) Convention, 1958.
11. Real or perceived
HIV status should not be a cause for termination of employment.
Temporary absence from work because of illness
or caregiving duties
related to HIV or AIDS should be treated in the same way as absences
for other health reasons, taking into
account the Termination of
Employment Convention, 1982.
13. Persons with
HIV-related illness should not be denied the possibility of
continuing to carry out their work, with reasonable
accommodation if
necessary, for as long as they are medically fit to do so. Measures
to redeploy such persons to work reasonably
adapted to their
abilities, to find other work through training or to facilitate their
return to work should be encouraged, taking
into consideration the
relevant International Labour Organization and United Nations
instruments.”
[41] The prevalence of
egregious discrimination on the basis of HIV and AIDS in South
African society has formed the subject of
extensive comment in labour
and constitutional jurisprudence. It is trite, following
Hoffmann
v South African Airways
(2000)
21 ILJ 2357 (CC) that discrimination on the basis of HIV status is
unconstitutional.
Ngcobo
J’s
dictum
in this
regard is instructive :
1
“
The
appellant is living with HIV. People who are living with HIV
constitute a minority. Society has responded to their plight with

intense prejudice. They have been subjected to systemic disadvantage
and discrimination. They have been stigmatised and marginalised.
As
the present case demonstrates, they have been denied employment
because of their HIV positive status without regard to their
ability
to perform the duties of the position from which they have been
excluded. Society’s response to them has forced many
of them
not to reveal their HIV status for fear of prejudice. This in turn
has deprived them of the help they would otherwise have
received.
People who are living with HIV/AIDS are one of the most vulnerable
groups in our society. Notwithstanding the availability
of compelling
medical evidence as to how this disease is transmitted, the
prejudices and stereotypes against HIV positive people
still persist.
In view of the prevailing prejudice against HIV positive people, any
discrimination against them can, to my mind,
be interpreted as a
fresh instance of stigmatisation and I consider this to be an assault
on their dignity. The impact of discrimination
on HIV positive people
is devastating. It is even more so when it occurs in the context of
employment. It denies them the right
to earn a living. For this
reason, they enjoy special protection in our law.
Further :
“
[35] …….
the devastating effects of HIV infection and the widespread lack of
knowledge about it have produced a deep
anxiety and considerable
hysteria. Fear and ignorance can never justify the denial to all
people who are HIV positive of the fundamental
right to be judged on
their merits. Our treatment of people who are HIV positive must be
based on reasoned and medically sound
judgments. They must be
protected against prejudice and stereotyping. We must combat
erroneous, but nevertheless prevalent, perceptions
about HIV. The
fact that some people who are HIV positive may, under certain
circumstances, be unsuitable for employment as cabin
attendants does
not justify a blanket exclusion from the position of cabin attendant
of all people who are HIV positive.
[36] The
constitutional right of the appellant not to be unfairly
discriminated against cannot be determined by ill-informed public

perception of persons with HIV. “
[42] Having regard to
these considerations, the court held that the denial of employment to
the appellant because he was living
with HIV impaired his dignity and
constituted unfair discrimination. In regard to testing Ngcobo J
noted (at para [51]) that “
.. item 4 of the SADC Code of
Conduct on HIV/AIDS and Employment, formally adopted by the SADC
Council of Ministers in September
1997, lays down that HIV status
‘should not be a factor in job status, promotion or transfer.’
It also discourages
pre-employment testing for HIV and requires that
there should be no compulsory workplace testing for HIV.”
The pleadings
[43] The statement of
claim sets out the cause of action under claim A as follows:
a) It is submitted
that the cause of the applicant’s dismissal was solely due to
his HIV status.
b) Furthermore, the
applicant was dismissed in a manner that violated his constitutional
rights, including his right to privacy
and dignity.
c) It is accordingly
submitted that the applicant’s dismissal was automatically
unfair in terms of section 187(1)(f) of the
LRA
Alternatively,
Should this honourable
court find that the dismissal of applicant was not automatically
unfair, it is submitted that the dismissal
of the applicant by the
respondent was unfair in the applicant was dismissed by the
respondent for no valid reason and without
the respondent following
any procedure in contravention of the section 188 of the LRA.
[44] The applicant seeks
maximum compensation in terms of section 194(3) of the LRA in the sum
equivalent to 24 months’ remuneration,
amounting to
R288 000.00, together with interest at a rate of 15.5% per annum
a tempora morae
. In the alternative claim he seeks maximum
compensation in terms of section 194(1) of the LRA, equivalent to 12
months’ remuneration,
amounting to R144 000.00, together with
interest at a rate of 15.5% per annum
a tempora morae.
[45] The respondent’s
defence to the claim is as follows :
Ad Claim A
6.1.1During an
interview on 27 October 2008 with representatives of the respondent
the strenuous demands of the position were pointed
out to the
Applicant, and he was asked whether his health was good enough to
meet those demands. Applicant replied that his health
was good and
that except for a sprained ankle, he had no illnesses.
6.1.2On 29 October
2008 (sic) signed an agreement for his temporary appointment which
included his job description.
6.1.3On or about 10
November Applicant volunteered information to the effect that he had
three illnesses, namely asthma, deep vein
thrombosis and HIV.
6.1.4The aforesaid
information was in conflict with his undertakings during the
interview of 27 October 2009(sic). At a disciplinary
hearing held on
13 November 2008 Applicant could not provide a reasonable explanation
for lying to the Respondent’s representatives
during the
aforesaid interview, and he was dismissed due to a breakdown in
trust.
6.1.5Respondent pleads
in the alternative that the dismissal was fair in that the Applicant
did not meet the inherent requirements
of the job.
Claim B
[46] The applicant seeks
damages in the sum of R150 000.00, together with interest at a
rate of 15.5% per annum
a tempora morae
This claim is pleaded
as follows in the statement of case:
All persons with HIV
and/or AIDS have the legal right to privacy. An employee is therefore
not legally required to disclose his
or her HIV status to their
employer or to other employees, and such employees may not be
discriminated against on this basis.
It is submitted that
the respondent’s conduct relative to the applicant amounted to
unfair discrimination in terms of the
Employment Equity Act, 55 of
1998 (“the EEA”).
The respondent
unfairly discriminated against the applicant in terms of section 6(1)
of the EEA by dismissing him and removing him
from the respondent’s
property without any notice in a manner that humiliated him and
impaired his dignity, solely on the
basis of the applicant’s
HIV status.
[47] The respondent
relies on the following defence :
Ad claim B (under
the EEA):
6.2.1Respondent denies
having discriminated against Applicant because of his HIV status and
respectfully refers the Court to its
plea in respect of Claim A.
Respondent denies that it humiliated Applicant as averred
. “
Evaluation of evidence
and argument : Claim A
[48] Section
187
requires the applicant to make out a
prima
facie
case that the dismissal was on a
prohibited ground. Once the applicant discharges this evidential
burden the onus is on the employer
to prove that the dismissal was
not for a prohibited reason. If the employer fails it would then have
to raise an alternative defence
that although the dismissal was on a
prohibited ground and therefore discriminatory, it was nevertheless
justified by an inherent
requirement without which the employee could
not perform the essential job requirements. This test has been
described as follows
by Davis JA in
Kroukam
v SA Airlink (Pty) Ltd
(2005) 26 ILJ
2153 (LAC) :
“
Section
187 imposes an evidential burden upon the employee to produce
evidence which is sufficient to raise a credible possibility
that an
automatically unfair dismissal has taken place. It then behoves the
employer to prove the contrary,
that
is to produce evidence to show that the reason for the dismissal did
not fall within the circumstances envisaged in section
187 for
constituting an automatically unfair dismissal”.
[49]
In casu
the
fact of the applicant’s dismissal, though initially in dispute,
became common cause and it is only the reason for the
dismissal that
remains in dispute. In this regard it is necessary to determine,
where there are a number of reasons posited for
the dismissal, what
the main reason is, as well as to distinguish between the ostensible
reason advanced by the employer and the
real reason that emerges from
the evidence. In this context the respondent’s assertion is
that the applicant committed misconduct
in failing to declare that he
suffered from three illnesses (including HIV) at his pre-employment
interview. The applicant submits
that he was dismissed for being HIV
positive and that this constitutes unfair discrimination based on his
HIV status and resulted
in his automatically unfair dismissal.
What was the reason
for the applicant’s dismissal?
[50] The applicant
submitted that it is common for employers with a less than legitimate
motive to seek to disguise an act of discrimination
as a misconduct
dismissal since a dismissal for a discriminatory reason attracts
significant penalties under the LRA. In this regard
Mr Bank referred
to
Bootes
(supra) where Pillay J held (at para [70]) that “
“
camouflaging discrimination under the cloak of misconduct
is one of the most insidious forms of unfair labour practices. Quick
to
perceive the unfairness, employees struggle to prove it”
.
Pillay J found that the employer had seized on the alleged misconduct
of the applicant because it sought to disguise its desire
not to have
an HIV positive person in its employ.
In casu
, unlike
Bootes,
the veracity of the respondent’s stated reason for the
dismissal (i.e. the applicant’s misconduct in failing to
disclose
that he was seriously ill) unfortunately did not form the
basis of formal charges tested at a disciplinary enquiry, and on this

basis alone can be refuted.
[51] On the facts the
respondent knew the applicant was homosexual and in a civil union. Mr
Bank, appearing with Ms Hassim from
the Aids Law Project for the
applicant, submitted that it was likely that the Malans already knew
at the interview that the applicant
was living with HIV, since it was
common cause that Malan senior had an extensive network in the
equestrian community and applicant’s
inspiring history of
successfully managing his HIV condition in the context of a
successful career had been lauded in the media
and would probably
have come to his attention. Thus, he submitted, the applicant’s
HIV status had been “floating around”
and because he had
not disclosed this the respondent had hoped to “catch him out”
by extracting a formal disclosure
on the PPF. The inference must
therefore be drawn that once the respondent established this as a
fact it determined to get rid
of him. Mr Ackerman, for the
respondent, denied that such a sinister motive could be attributed to
its seeking of personal information
for administrative purposes on
the PPF. In this regard it is correct that the applicant had himself
volunteered the information,
referring to his “illnesses”
and that the form only required medication and allergies to be
listed. Although I am disinclined
to attribute a sinister motive to
the respondent in respect of the PPF, it is inexplicable that this
information would be sought
from only three employees of a staff of
30, and that it should moreover be sought from only those known to be
homosexual. Furthermore
Malan’s evidence that the PPF was a
standard form to record the information of all employees for payroll
and administrative
purposes is belied by the fact that the PPF does
not request banking details, which would have been essential employee
information.
It is common cause that the applicant inserted this of
his own accord on the PPF. Herbst’s testimony that this was the
first
time in her five years of employment with the respondent that
she had seen the PPF was not disputed and it was common cause that

the content of the PPF differed substantially from the forms issued
to other employees. However Malan’s testimony was that
he was
not aware that the PPF had been sent to the applicant. Furthermore,
even though the applicant volunteered more medical information
than
was required and had not been directly required to reveal his HIV
status, this would probably have emerged had he restricted
his
disclosures to the chronic medication requested on the PPF. On the
probabilities therefore the respondent’s the circulating
the
PPF cannot be said to have been a mere administrative exercise. At
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.
[52] Mr Bank submitted
that Malan had been restrained in his evidence regarding the real
reason for the dismissal and that he had
not fully explained Van
Zyl’s reaction when she saw the applicant’s PPF. When
applicant’s Counsel revisited the
issue in cross examination
Malan denied that she had said anything at the time. He then said
that he could not remember what Van
Zyl said although conceding that
she had possibly pointed to the illnesses disclosed. Mr Bank
submitted that an adverse inference
should be drawn against Malan in
this regard and that the evidence which was curtailed related to Van
Zyl pointing out to Malan
the disclosures on the PPF and being
shocked by them. Although I agree with this submission it is common
cause that the respondent
was shocked, not by the HIV disclosure but,
according to Malan, by the fact that the applicant had three
illnesses in the context
of his undertaking at the interview that he
was healthy. What is more telling in my view is the emphasis placed
by Malan on the
HIV issue when he confronted the applicant, as
emerged from the applicant’s testimony and which was partly
conceded by Malan.
In the circumstances given the haste with which
this occurred and its proximate cause being the PPF it is clear on
the probabilities
that Malan was primarily affronted by the failure
to disclose the HIV condition at the interview. Had this not been the
case he
would have charged the applicant with dishonesty or
fraudulent misrepresentation at a duly convened formal disciplinary
enquiry.
The implications of having employed a manager of the Centre
in the belief that he was in good health only to find out that he was

living with HIV and was obviously ill is the only probable
explanation for Malan’s outrage and the haste with which the
summary dismissal of the applicant was effected. Malan asserted that
he did not discriminate unfairly based on sexual orientation,
but it
is not inconceivable that he would draw the line at employing an HIV
positive person. In this regard we did not have the
benefit of Malan
senior’s testimony on the real reason for the dismissal, and it
is noteworthy that he did not attend court
on any day of the hearing
despite being the respondent’s attorney of record. Malan was
left to defend conduct that his father
(and immediate superior in
respect of the Centre) would have known to be unconstitutional,
unlawful and unfair.
[53] It is probable that
had the applicant not rushed off angrily and the employer not felt
further aggrieved by his post-dismissal
conduct, a formal enquiry
might have ensued at which the charges of misconduct could have been
tested. Mr Ackerman conceded, correctly
in my view, that the meeting
fell far short of a formal disciplinary enquiry. However it is
correct, as Mr Bank submitted that
that it was still open to the
respondent to convene a formal disciplinary enquiry to charge him
with misconduct, or to dispute
that he had been dismissed at the
meeting. It is furthermore improbable that the applicant would have
calmly admitted to Malan
that he made a mistake and then abruptly
stormed off threatening to tell everyone he had been dismissed for
HIV/AIDS. The applicant
admitted that he became angry at the manner
in which he was dismissed and in fact did run down the stairs making
the threat. His
evidence on this issue was not denied by Malan and
was further corroborated by Herbst and is therefore common cause. His
anger
at being dismissed for not disclosing his HIV condition
remained palpable at this hearing despite the time that had elapsed.
[54] The inescapable
facts are that the applicant had no medical or physical impediment
preventing him from performing his duties.
This was not only his
evidence and that of Prof Venter, but also Malan had been unable to
dispute that (save for the two incidents
related by Herbst) the
applicant had acquitted himself well in a strenuous and demanding
job. This renders spurious any notion
that he was “severely
ill” and belies the true rationale for his dismissal. 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).
[55]
The evidence establishes that the respondent’s primary
concern was the applicant’s HIV status, embellished as it was

by the expressed concerns about the other “illnesses”.
Although the respondent may have had legitimate concerns about

non-disclosure of what a layperson may have seen as a spate of
illnesses affecting recently appointed employee’s ability
to
work, the nub of the respondent’s sense of grievance must be
the failure to disclose his HIV status. This is the real
reason for
the dismissal, or at least the dominant reason. This is the only
conclusion that would explain Malan’s outrage
and the manner in
which he proceeded to summarily and shoddily dismiss the applicant.
This constitutes discrimination on an arbitrary
ground prohibited by
s 187(1)(f) and is therefore an automatically unfair dismissal. The
respondent has therefore failed to discharge
the onus of proving that
the dismissal was not for an unfairly discriminatory reason.
Once
it is found that the HIV was the real reason for his dismissal the
respondent is burdened with an evidentiary burden to prove
that the
discrimination was justified.
I am now enjoined to consider
the defence that the applicant’s termination was justified
based on an inherent job requirement.
This is a defence both to the
automatically unfair dismissal claim and the unfair discrimination in
claim B as is discussed below.
Was the discriminatory
dismissal justified by an inherent job requirement?
[56] An inherent job
requirement was held to constitute an absolute defence against
unfairness in
Leonard
Dingler Employee Representative Council & others v Leonard
Dingler (Pty) Ltd & others
(1997)
11 BLLR 1438
(LC) at 148H. Although it is not defined in the
Employment Equity Act its
origin can be traced to Convention 111, in
respect of which the committee of experts has emphasised the need for
a strict interpretation.
John
Grogan
2
defines it as relating to
the possession of a “
particular
personal physical characteristic (for example, being male or female,
speaking a particular language, or being free of
a disability) which
must be necessary for effectively carrying out the duties attached to
a particular position”.
[57] The court in
IMATU
and another v City of Cape Town
(
(2005) 26 ILJ 1404 (LC) at [100]), relying on
Dupper
& Garbers
Employment
Discrimination: A Commentary
in
Thompson and Benjamin,
South
African Labour Law
(Juta
2004)
warned
that the
inherent
job requirement defence should be applied restrictively in that
“
[A]ny
legislatively formulated justification of discrimination constitutes,
in effect, a limitation on the constitutionally entrenched
right to
equality and this militates
against
an expansive reading of the phrase “an inherent requirement of
the job”.
In
considering whether a blanket ban on employing diabetic fire-fighters
was justified Murphy AJ held:
“
110.
Therefore I agree with the applicants that the respondent has failed
to justify its unfair discrimination (in the form of a
blanket ban).
Without in any way denying that fire fighting is by its nature a
hazardous occupation, to simply exclude all insulin
dependent
diabetics from the occupation on this ground is not justifiable.
111. The respondent is
guilty of assigning characteristics which are generalised assumptions
about groups of people to each individual
who is a member of that
group, irrespective of whether that particular individual displays
the characteristics in question. It
is treating all insulin dependent
diabetics the same and imposing a blanket ban on the employment of
that group as fire-fighters,
irrespective of whether the particular
individual - such as Murdoch, who is physically fit and in optimal
control of his diabetes
– displays any susceptibility to
uncontrolled hypoglycaemic episodes.”
[58] The respondent has
similar difficulties in proving the exclusion of an employee allergic
to penicillin, in the absence of risk
assessment and objective
justification that he would be rendered unable to perform his duties.
The respondent relied exclusively
on the expert testimony of Herbst
in proving this defence. The probative value of her evidence is
however nullified by her lack
of medical, veterinary or
para-veterinary experience, although she is undoubtedly an able and
experienced equestrian manager. She
was unaware that depocillin was
listed as a schedule 4 drug under the Medicines and Controlled
Substances Act, 101 of 1965 and
as such could only be administered on
medical prescription. Her opinion that a penicillin allergy was
contra-indicated for the
administration of depocillin because of the
risk of needle stick injury was refuted by the applicant’s
version. She was moreover
unable to dispute the applicant’s
evidence that the erroneous ingestion of penicillin had merely caused
him to suffer a skin
rash. Although Herbst was in general a truthful
and reliable witness, she did exhibit a degree of reticence which
appeared from
her guarded responses to certain questions. This is not
surprising given her status as a longstanding and loyal employee, but
it
has obvious implications for her evidence on the justifiability of
the penicillin allergy.
[59] The applicant
submitted that a non-allergy to penicillin could not constitute an
inherent job requirement in that:
the administration of
depocillin by a stable manager in the absence of a medical
prescription would be unlawful.
the evidence of both
Prof Venter and the applicant dispenses medically and factually with
the notion that a penicillin allergy
is a contra-indication for
administering penicillin to a horse.
Malan conceded that
other than the two incidents of which he had no direct knowledge,
the applicant had performed all the strenuous
requirements of the
job and there had never been a crisis involving horses during his
short period of employment.
[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. It is also noteworthy that the penicillin
defence emerged for the first time in the respondent’s
expert
notice on 12 November 2010, and in reply to a request for further
particulars, more than two years after the cause of action
arose.
Furthermore, Malan’s evidence that he only became aware of the
applicant’s penicillin allergy when this was
reported to him,
makes it eminently clear on the probabilities that it could not have
manifested as a possible disqualification
for the job of stable and
yard manager at the time the applicant was employed. It is clear when
regard is had to the chronology
preceding this trial that the
applicant is correct in asserting that the penicillin defence was a
response to its expert witness
notices listing eminent medical
experts and HIV clinicians who would testify that the applicant was
essentially healthy despite
living with HIV and was more than capable
of performing all work related tasks.
[61] For these reasons,
in my view, the respondent has failed to prove that the penicillin
defence constituted an inherent job requirement
that and that it was
objectively justifiable. Moreover, on the probabilities it was
established that, even had the respondent succeeded
in proving that
it was an inherent job requirement, on its own admission it had not
affected the applicant’s ability to perform
his job.
Evaluation of evidence
and argument : Claim B
[62] In its reply to the
applicant’s request for further particulars the respondent
denies any reference to “
undertakings”
which were
relied upon to the effect that the applicant was in good health,
despite having pleaded this in its statement of defence.
It pleaded
that it had reason to expect of applicant to disclose his medical
condition (or, to use his terminology, his illnesses)
during the
interview, and that his failure to do so led to a breakdown in trust
justifying dismissal. Alternatively, his allergy
to penicillin
rendered him unfit for the position.
[63] It is trite law that
the applicant was under no legal obligation to disclose his HIV
status to his prospective employer and
that the expectation that he
should have so disclosed violates his right to dignity and privacy.
It was this expectation moreover,
that formed the primary reason for
his dismissal.
[64] Although the
questions put to the applicant in regard to his sexual orientation,
religious affiliation and marital status would
constitute unfair
discrimination this has not been pleaded. The applicant admitted that
Malan had raised these in the interview
in order to “make me
feel at ease and to make me think that he was not conservative”.
The applicant submitted that
the questions on the Personal
Particulars Form constituted “medical testing” as defined
in
section 7(1)
of the
Employment Equity Act, and
that insofar as it
related to pre-employment HIV testing the respondent was required to
comply with
section 7
(2). However this does not appear to form part
of the applicant’s pleaded case and was raised for the first
time in argument.
It is accordingly not necessary to determine and
the respondent’s conduct has already been held to be unfairly
discriminatory
for other reasons as set out above in respect of the
LRA claim.
[65]
The relief sought in Claim B is in essence a
solatium
for the
injuria
or damages to the applicant’s
humiliating treatment based on his sexual orientation and his
homeless status following his dismissal, as well as the unfair
discrimination
and loss of dignity arising from the expectation that
he should have disclosed his HIV status at the interview.
[66] In regard to the
eviction incident the applicant submitted that it was noteworthy that
the respondent did not deny the incident
nor did it lead any evidence
to gainsay the applicant’s version. There was moreover a causal
link between Malan’s summary
dismissal of the applicant
accompanied by the order that he vacates the premises, and Hattingh’s
insults, and despite the
absence of proof that a direct instruction
was issued to Hattingh, it should nevertheless be inferred from the
circumstantial evidence
that the that the instruction must have
emanated from the respondent and it should accordingly be held
liable. The respondent deigned
not to tender any evidence that
Hattingh was not an employee, or to suggest that someone else may
have been responsible for his
conduct. The applicant had never prior
to the incident met Hattingh and there would have been no reason for
such virulent ill-will
had he not been familiar with the
circumstances of the applicant’s termination, and it was
therefore plausible that this
information must have emanated from the
Malans. It could not have emanated from a source as disinvested as a
benign residents association,
and the probabilities indicate that
Malan was upset by the applicant’s continued presence on the
premises despite his dismissal
and the Malans commanded great respect
amongst the residents and would undoubtedly have been able to summon
the eviction without
direct intervention. Moreover the Malans were
residents of the estate and Malan had conceded that either he or
Herbst had notified
the homeowners’ association of the
applicant’s dismissal. I do not agree that this circumstantial
evidence, which is
largely speculative, creates a sufficient causal
nexus on which the Malans can be held liable. Indeed even if it does,
such a claim
is not competent in this court having occurred after the
dismissal of the applicant and in circumstances where the applicant
seeks
not to rely on vicarious liability of the employer under the
EEA. Although Malan’s version on the reason for the applicant’s

dismissal was rejected, he was otherwise a satisfactory witness and
it is unlikely that (even if he was the one who informed the

homeowners’ association of applicant’s termination) he
would instruct that the applicant be treated with such visceral

hatred. This leaves the only appropriate cause of action a civil
claim in delict.
Remedy
[67] 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”
(section 194(3)).
The
applicant for obvious reasons does not seek reinstatement. In
determining the appropriate relief under claim A for an automatically

unfair dismissal the principles entrenched in
CEPPWAWU &
Another v Glass and Aluminium 2000 CC
[2002] 5 BLLR 399
(LAC)
(despite being decided prior to the 2002 amendments to the LRA) are
still apposite, as is the approach of Davis AJA in
Kroukam
(supra) 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. This approach
was
endorsed in Du Toit et al,
Labour Relations Law : A Comprehensive
Guide
, fifth edition, LexisNexis 2006 at page 476. The fact
therefore that the applicant was employed on a three month temporary
employment
contract, subject to review at the end of that period, is
therefore relevant to the relief to which he is entitled .
[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. The
applicant had a valid explanation
– he submitted that his
refusal to sign the notice reflected his rejection of the allegation
that he was dismissed for fraudulent
misrepresentation and that any
lay person faced with such a letter could be excused for believing
that by signing he would be acquiescing
with its contents as opposed
to simply acknowledging receipt.
[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.
[70] The applicant
submitted that the insinuation that the applicant was deliberately
trying to mislead the respondent by not disclosing
his HIV status,
given that he knew they were “difficult and conservative
people” should likewise be taken into consideration
in the
relief to be awarded to him. The fact remains that he did disclose,
even though he knew he was not legally required to,
within less than
two weeks of his employment, fully aware of his right to privacy and
confidentiality. He went further and volunteered
more information
than was required, which cannot be consistent with an imputation of
dishonesty, within a few days of starting
employment. This is
laudable in the context of his awareness of his right not to disclose
and must mean that he trusted his employers
with this information. It
cannot therefore be said that his conduct constituted a deliberate
withholding of information or that
it was motivated by dishonesty or
deceit. The irony is that the very fear which militated against his
initial disclosure in fact
materialised when he subsequently
disclosed.
[71] Notwithstanding
these submissions however, it must be borne in mind that the
applicant’s evidence was that he did not
intend
to
disclose to the Malans. He thought the PPF would not come to their
attention and would remain at the Centre where he was in charge.

Although I agree with the respondent’s submission that this is
not consistent with a genuine intention to disclose his HIV

condition, his motivation is less relevant in the context of a legal
entitlement not to disclose but is more relevant to issues
of
credibility. The fact that the alleged warning issued by Herbst was
not canvassed with her in cross examination was attributed
to an
omission by the applicant’s Counsel. However I am inclined to
reject the applicant’s version on this issue. Given
the
otherwise meticulous manner in which the applicant’s case was
conducted it is improbable that a material issue would
not have been
canvassed with a witness.
[72] There are also other
factors however that are relevant to the relief to be awarded. The
applicant’s testimony was evasive
on some issues and
inconsistent on others. Although Ms Hassim attributed this to his
anger at the humiliation he suffered, this
cannot explain for
instance his insistence on two interviews followed by the concession
that there was one at which both Malans
were present, nor his
explanation that his post-dismissal conduct reporting the respondent
to the Department of Labour was not
vindictive but fell within the
ambit of his duties. However the lapse of time would probably account
for some of the inconsistencies,
particularly his inability to recall
whether he was dismissed in the morning or the afternoon, although
none of these are material.
[73] This leads me to the
question of whether it is competent to award relief for both the
dismissal under the LRA and discrimination
under the EEA arising from
the same set of facts. I am indebted to Counsel for producing
additional heads of argument on the question
of whether a dual claim
is competent. The applicant’s counsel submitted that the
applicant was entitled to relief both in
respect of the unfair
discrimination meted out to him and his unfair dismissal and
subsequent harassment on the grounds of his
HIV status. This court
has held that dual claims under the LRA and EEA arising from the same
set of facts are competent : see
Evans V Japanese School of
Johannesburg
[2006] 12 BLLR 1146
(LC);
Atkins v Datacentrix
(Pty) Ltd
(2010) 31 ILJ 1130 (LC). In
Atkins
the employee
was offered employment but prior to the commencement of his
employment he advised the employer that he was transsexual
and
intended to undergo gender re-assignment or “sex change”
surgery. The employer regarded this belated disclosure
as material
and a repudiation of the contract. It argued that the information
should have been disclosed during the interview,
and it cancelled the
employment contract. The court held found that the applicant was not
under an obligation to volunteer this
information during the
interview process. It held that he had been discriminated upon on the
basis of his gender and, in the circumstances,
that this was unfair.
The dismissal was held to be automatically unfair and the court
awarded compensation equivalent to just less
than five months’
remuneration. Francis J declined to award damages under the LRA
having found that no evidence to justify
the claim. Furthermore, in
Ehlers v Bohler Uddeholm Africa (Pty) Ltd
(2010) 31 ILJ 2383
(LC) Francis J again found dual claims arising from the same facts to
be competent but found that the applicant
had not pleaded damages
under the
Employment Equity Act. Compensation
was not an issue as the
applicant was reinstated and the court ordered the employer to take
steps to avoid repetition of such egregious
discrimination in the
future. In
POPCRU & others v Department of Correctional
Services & another
[2010] 10 BLLR 1067
(LC) Cele J considered
a claim under both the EEA and LRA arising from the prohibition of
dreadlocks among male prison employees,
which was alleged to
constitute discrimination based on religion, conscience or belief and
gender. The court ordered reinstatement,
alternatively 20 months’
compensation to those employees who did not seek reinstatement.
[74] In
Bedderson v
Sparrow Schools Education Trust
[2010] 4 BLLR 363
(LC) however,
Le Roux AJ declined to award the maximum compensation provided for in
section 194(3)
for an automatically unfair dismissal on the grounds
of age. The court found that the dismissal constituted both an
automatically
unfair dismissal on the prohibited ground of age, as
well as unfair discrimination based on age in terms of
section 6(1)
of the EEA. The respondent was ordered to pay the applicant an amount
of R42 000.00, representing compensation equal to six
months’
remuneration.
[75] In
Christian v
Colliers Properties
(2005) 26 ILJ 234 (LC), and despite having
served a mere two days’ of her employment, the employee was
awarded maximum compensation
under the LRA but nominal damages under
the EEA. The court, referring to
Alexander v Home Office
[1988] IRLR 190
(CA) emphasised the rationale for damages for unfair
discrimination as follows:
“
The
objective of an award for unlawful racial discrimination is
restitution. For the injury to feelings, for the humiliation, for
the
insult, it is impossible to say what is restitution and the answer
must depend on the experience and good sense of the judge
and his
assessors. Awards should not be minimal, because this would tend to
trivialise or diminish respect for the public policy
to which the Act
gives effect. On the other hand, just because it is impossible to
assess the monetary value of injured feelings,
award should be
restrained. To award sums which are generally felt to be excessive
does almost as much harm to the policy and the
result which it seeks
as do nominal awards.”
[76]
The applicant submitted that the present claim is
distinguishable from
inter alia Atkins
(supra) in that the
applicant led evidence about his ignominious treatment post-dismissal
as well his attempts to resuscitate his
relationship with private
clients following the loss of his stable (no pun intended)
employment. It is so that this was
ad-hoc
and required him to
travel to and from Gauteng and that he had relocated after his
appointment.
[77] In my view the
applicant has proven an entitlement to relief arising from his unfair
dismissal for a discriminatory reason.
The unfair discrimination
encompasses damages for loss of dignity and privacy in that he was
expected to disclose his HIV status.
This is in my view accommodated
by the punitive element envisaged in section 194(3) of the LRA. Had
the applicant not been a temporary
employee on a three month contract
he would have been entitled to the maximum compensation envisaged in
that section, but in determining
just and equitable compensation in
the circumstances this must feature as a relevant consideration. I
have already indicated for
the reasons above that in regard to claim
B this court lacks jurisdiction in respect of the
solatium
for
harassment and loss of dignity arising post-dismissal, which would
more properly be founded in a civil delictual claim. Insofar
as it
was submitted that he was being divested of an employment benefit
this is in my view an insufficient causal nexus to vest
the
respondent with liability.
Order
[78] In the premises, I
make the following order:
1. Claim A: The
applicant’s dismissal is declared to be automatically unfair
under section 187(1)(f). The respondent is ordered
to pay 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.
2. The applicant is
entitled to the costs consequent upon the employment of two counsel,
and this court is indebted to the Aids
Law Project for its
assistance.
2. Claim B: The claim is
dismissed, although in the interests of fairness there is no order as
to costs.
_____________
Bhoola J
Judge of the Labour Court
of South Africa
Date of hearing : 29
November – 2 December 2010
Date of judgment: 16
February 2011
Appearance:
For the Applicant : Adv W
Bank instructed by Webber Wentzel Attorneys and Adv A Hassim from the
Aids Law Project
For
the Respondent: Adv M Ackermann instructed by Hendrik Malan Attorneys
1
At
para [28]
2
Workplace
Law
, Tenth edition, Juta
2010, page 107
11