Types of instruments used: ratified treaty;¹ instrument not subject to ratification²

Discrimination on the basis of HIV status/ Unfair dismissal/ Recognition of discrimination on the basis of HIV status as unlawful and unconstitutional/ Reference to international law to strengthen a decision based on domestic law

The complainant was employed by the Mooikloof Estates (Pty) Ltd as a horse riding instructor and stable manager on 1 November 2008. At the time of his recruitment, he had been living with HIV for almost 20 years.  Prior to being hired, the complainant underwent an interview, during which he informed his prospective employer that he was “in good health”.  Shortly after his hiring, the complainant, along with other employees, was asked to complete a form requiring him to disclose whether he was taking any “chronic medication.” The complainant complied and disclosed that he was taking, among other things, daily medication to manage his HIV condition. Upon learning of his HIV-positive status, the Mooikloof Estates immediately dismissed the complainant on the grounds that he had fraudulently misrepresented his condition and that he was in fact “severely ill”.

The Court found that the complainant’s dismissal violated the equality rights enshrined in the Constitution of the Republic of South Africa Act.³ The Court also considered that the dismissal violated sections 187(1)(f) and 188 of the Labour Relations Act, No. 66 of 1995 and section 6 (1) of the Employment Equity Act, No. 55 of 1998.

In deciding the case, the Court also stated that South African anti-discrimination legislation derived its mandate from ILO Conventions, including ILO Convention No. 111, which prohibited workplace discrimination on a number of specific grounds, but did not specifically proscribe HIV discrimination. The Court noted, however, that ILO Recommendation No. 200 recognized the impact of discrimination based on real or perceived HIV status, and its increasing prevalence. It specifically referred to Convention No. 111 when addressing the issue whether the discriminatory dismissal was justified by an inherent job requirement.⁴ It stated: “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 [the ILO Committee of Experts on the Application of Conventions and Recommendations] has emphasised the need for a strict interpretation”.⁵

Having referred to ILO Convention No. 111 and ILO Recommendation No. 200 to strengthen its decision based on domestic law, the Court confirmed that discrimination on the basis of HIV status was unconstitutional in South Africa.  The Court ordered Mooikloof Estates pay the claimant 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.

¹ ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

² ILO HIV and AIDS and the World of Work Recommendation, 2010 (No. 200).

³ Specifically, subsections 9(a) and 9(b).

⁴ Paragraph 40 of the decision.

⁵ Paragraph 56 of the decision.