5 August 2008
BONELA Celebrates Victory for HIV Infected Employee at the Industrial Court
Today, the Industrial Court handed out a heavy judgment against an employer who discriminated against an employee who revealed his HIV status to the said employer.
The brief facts of the case are that, 49 year old Mr. Benson Modukanele, (employee) who is a BONELA client, was employed by HITECON, (employer) a construction company, as a Driver. Mr. Modukanele started working for the said company from the 15th February 2007 at a monthly salary of P1 800.00.
He was later diagnosed with HIV and decided to tell the employer, through its owner Mr. Hu Zhongwen with the hope that he will treat the information maturely, sensitively and with understanding. Instead the employer told the employee that he should cease to work for him as he does not want to deal with employees infected with HIV.
The employee tried in vain to impress upon the employer that he is fit and able to perform optimally. In the end, he was fired on the 8th October 2007 without any reason. In fact, the employer gave him a handwritten note saying “we do not need your service for the future”. That was the only explanation proffered.
The employee with the help of BONELA approached court seeking help. But firstly the dispute was taken to a District Labour office whereat the employee was given a total award of P19 979.70, which the employer refused and/ or ignored to pay. The matter was then referred to the Industrial Court, and the said court today awarded the total sum of P24 425.85. The breakdown of this amount is as follows: (6 months salary as compensation for unfair dismissal =P10 800.00, unlawfully withheld accrued leave pay = P192.40, overtime = P13 433.45).
This case chiefly demonstrates two things, on the one hand that employers continue to discriminate against employees who are HIV infected and on the other hand that the courts in some cases, even in the absence of specific laws, are able to condemn these discriminatory tendencies by awarding stiff awards against such employers.
However, in order to provide comprehensive protection from HIV related discrimination at the workplace, specific laws need to be enacted consequently BONELA continues to call for the enactment of a specific law dealing with issues of HIV and AIDS in the workplace.