17 February 2011

Fired HIV employee wins labour court bid

An award winning riding instructor and stable manager, who was dismissed by his former employer in 2008 for being HIV positive, won his case in the Labour Court.


An award-winning riding instructor and stable manager who was dismissed by his former employer in 2008 for being HIV positive won his case in the Labour Court in Johannesburg.

The case relates to the unfair dismissal of Gary Allpass, 48, by Mooikloof Estates in Pretoria, which owns an equestrian centre.

Mooikloof Estates, which has since sold the centre, was ordered to pay Allpass a year's salary and cover the legal costs involved in the action he brought against them.

Claim for damages

However, Allpass' claim for damages of R150,000 was dismissed, but no order was given concerning those legal costs.

Handing down judgment, Judge Urmila Bhoola noted that the 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.

"It is trite law that the applicant [Allpass] was under no legal obligation to disclose his HIV status to his prospective employer, and that the expectation that he should have done so violates his right to dignity and privacy."

"It was this expectation, moreover, that informed the primary reason for his dismissal," Bhoola said.

He won the case

Allpass, who could not hide his excitement, told journalists shortly after the judgment that he was happy to have won the case, as it proved that people living with HIV did not have to accept discrimination.

"This [the legal battle] bothered me, but it's all over now," he said.

Allpass had relocated to Gauteng from the Western Cape, where he was self employed, to take up the post at the Mooikloof centre on November 1, 2008, earning R12,000 pm. He had lived on his now former employer's premises.

His job description included managing the centre, horse grooming, care and supervision around the clock.

However, hardly 10 days into the job, when his former employer decided to collect medical information on employees, Allpass' disclosure of his status led to his dismissal.

This was followed by forced removal.

In a formal dismissal note, the employer stated reason for the action as "fraudulent misrepresentations".

Their defence

In their defence in court, the employer claimed that they had dismissed Allpass because of a breakdown in trust, as he was "dishonest about his illness".

They further accused him of using his HIV status to get sympathy in court during the case hearing.

Allpass had approached the human rights group, Section 27, for assistance to take on his former employer following his dismissal.

The organisation partnered with law firm Webber Wentzel Attorneys.

"We get many cases like this and this indicates that there is still a problem with some employers, especially the smaller ones," said Section 27 director Mark Heywood.

"We hope the message [from Allpass' victory] will be heard by thousands of people and also that people with HIV know the law is there to protect them," he said. (Sapa / February 2011)

No sugar coating for HIV positivity


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Dr Sindisiwe van Zyl qualified at the University of Pretoria in 2005. She is a patients' rights activist and loves using social media to teach about HIV. She is in private practice in Johannesburg.

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