Ratified treaty;¹ Non-ratified treaty;² instruments not subject to ratification³

Discrimination/ HIV and AIDS/ Absence from work due to illness/ Unfair dismissal/ Establishment of a jurisprudential principle based on international law

The claimant worked as an aeronautical engineer apprentice from 8 September 1998 to 30 January 2004, the date on which he was dismissed by the defendant enterprise. The enterprise argued that the worker was dismissal on the grounds of his prolonged absences, which during the last three years of his contract had exceeded paid leave allowances and obliged the worker to take unpaid leave. For his part, the claimant argued that he was dismissed on the grounds of that he was HIV positive, since he had informed the enterprise of his condition the day before his dismissal. The claimant therefore called for the dismissal to be declared unfair, claiming payment of the corresponding compensation. 

The judge deemed that the dismissal of the claimant one day subsequent to his notifying the employer of his condition provided the main evidence that the dismissal had been based on his HIV-positive status. In its decision, the Court referred not only to the provisions of the Constitution of Botswana but also highlighted that its status as a court of equity allowed the Court to take into account international labour standards, stating as follows:

 “The International Labour Organisation Declaration on Fundamental Principles and Rights at Work, adopted in June 1998 reaffirms the constitutional principle of the elimination of discrimination at the workplace. There can be no doubt in my mind that the values of human dignity and elimination of discrimination are the very essence of our constitution. The current approach to issues of HIV/AIDS at the workplace is that it is incompetent to dismiss an employee solely because he or she is HIV positive. [...]

[T]he ILO Termination of Employment Convention, 1982 … requires that there must be a valid and fair reason "connected with the capacity or conduct of the worker" for a disciplinary dismissal. Given the fact that HIV is impossible to transmit through casual contact, the mere fact that a worker has HIV is not a rational basis for discriminatory treatment or for termination of services. Enterprises should not have policies which invoke discriminatory practices towards an HIV-positive employee. They should view the worker concerned in exactly the same way as they would view any other employee suffering from a life-threatening illness. The above quote is based on the International Labour Organisation Code of Practice on HIV/AIDS. The above code, although not having a force of law, is persuasive in so far it is consistent with Botswana's international obligations, (see Convention no 111 (Discrimination, Employment and Occupation Convention, 1958), which Botswana has ratified).”⁴

Relying on the ILO Declaration on Fundamental Principles and Rights at Work and Conventions No. 111 and 158, the Court concluded that this was a case of discrimination and unfair dismissal, and proceeded to order the defendant to pay the corresponding compensation.