Non-ratified treaty;¹ Instrument not subject to ratification² 

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

The claimant, who had been employed by the enterprise Botswana ASH, had been diagnosed as HIV positive prior to 1993 but had asked the enterprise’s doctor not to make his health condition public. Therefore, the employer was unaware of the employee’s status as an HIV carrier. In 1997, the worker’s health deteriorated and he began to show the first symptoms of AIDS, which caused him to take regular absences from his job. On 5 February 1998, while on sick leave, the claimant was called to company premises where he was informed that he was being dismissed. The claimant did not make an objection to the dismissal, but did indicate that he felt very bad and did not know how to defend himself. Since he was still on sick leave at the time, the claimant felt that the dismissal was unfair and that he was therefore due compensation.

The Court embarked on its analysis by indicating that Botswana did not have any legislation that provided guidance on how to deal with cases related to HIV and AIDS in the workplace; however, it did have a public policy based on the ILO Code of Practice on HIV/AIDS and the World of Work (2001), which nevertheless had moral persuasive but not legal authority for its application. The Court indicated that it was not only a court of law but also a court of equity and that these rules of equity are derived from ILO conventions and recommendations. This fact gave the Court the power to apply ILO Conventions and Recommendations. In light of the above, the Court resolved the case by referring to Articles 4 and 7 of ILO Convention No. 158, which enshrines the basic requirements for fair dismissal:

“The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service […] The reason for saying that ILO Convention No 158 is also applicable to incapacity due to ill health is because of the aforesaid underlined word 'capacity', which also includes incapacity. The said Art 4 is also the origin of the equitable requirement that an employer can only dismiss an employee if he had a valid reason for doing so. [...]”³

Apart from the above procedural requirements [as per art. 7 of Convention No. 158], it is fair to dismiss sick or injured employees only when there is no prospect of their recuperating in a time during which the employer can cope without suffering significant loss as a result of the employee's absence.”⁴

Making use of the principles established in Articles 4 and 7 of ILO Convention No. 158, the Court concluded that the employer had been very tolerant and had shown compassion to the worker during his prolonged periods of illness, thereby demonstrating that the contract had not been terminated based on the worker’s HIV-positive status but based on the impossibility of the worker performing the task for which he had been hired.