MCGREGOR

World AIDS Day was commemorated on December 1, under the theme: 'Stop AIDS. Keep the promise. Get tested'. The ultimate objective is to ensure that HIV positive individuals know their status early enough so that they are able to obtain the necessary treatment and avoid the potentially debilitating consequences of the disease.

However, concerns have been raised regarding the stigma and discrimination which is encountered by HIV-positive individuals within the workplace. What legal recourse do they have if they are dismissed from their employment because their status is disclosed to their employers?

Under the common law, an employer may terminate an employee's contract of employment with or without notice, depending on the circumstances which give rise to the dismissal. An act which constitutes gross negligence, gross insubordination or some other serious breach of contract may entitle the employer to dismiss the employee summarily, that is, without notice or notice pay. However, where a common breach of contract occurs, the employer must give the employee notice of the dismissal, or pay in lieu of such notice, in accordance with the employment contract.

Termination and Redundancy Payments

If the contract of employment is silent as to the appropriate notice period, one must look to the Employment (Termination and Redundancy Payments) Act to see what minimum period of notice is required to terminate the contract; and this depends on the employee's years of service.

This act also proscribes that, in all cases of dismissal from employment, the employee is to be paid for work done up to the time of dismissal as well as all unused vacation leave.

An employee who is protected under a collective bargaining agreement has another option. If he believes that he has been unfairly dismissed, the matter may be referred by his trade union to the Industrial Disputes Tribunal (IDT) for consideration in accordance with the Labour Relations and Industrial Disputes Act. In this forum, even if the contract of employment was lawfully determined, the employee may be reinstated to his position or recover compensation for the manner in which the termination occurred if the circumstances of the dismissal were unjustified.

On the one hand, in an action for wrongful or unlawful dismissal at common law or pursuant to the Employment (Termination and Redundancy Payments) Act, the employee is usually only entitled to recover the amount which he would have been paid if his contract was properly terminated. For this reason, a non-unionised employee who has been dismissed in furtherance of discriminatory employment practices will have no recourse under the common law or the Employment (Termination and Redundancy Payments) Act. But, on the other hand, a unionised employee may have some recourse if he is dismissed merely because of his HIV status.

Inadequate protection

In conclusion, the protection afforded to the HIV-positive worker under the law is inadequate to prevent discrimination. There is no constitutional provision, nor specific HIV or anti-discrimination legislation which preserves the right to work. Accordingly, given the present state of the law, in the absence of a workplace policy which decries discriminatory practices, there is hardly an effective way to prevent dismissals on account of one's HIV status.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com.