Gary Allpass says he feels vindicated by the ruling. ‘I’m happy that we won the case. I cannot believe that people still discriminate in this day and age. HIV is a sickness that you can manage. It is not a big issue anymore, but people are still backwards about their thoughts’, he said after judgement on his case was handed down.
Allpass has been living with HIV for 20 years now and has never fallen ill nor has he been unable to work because of his condition. He says he is pleased with the Labour Court’s ruling and hopes that other HIV-positive people can be encouraged to make in-roads when fighting discrimination.
‘I have always been open about my HIV status and I hope this will encourage other people to be open about theirs. Having brought the media here, I am hoping it will make them realise that if we can get more people coming to fight for their rights, it might take away that stigma. I have had enough of fighting this stigma with my career, but I haven’t given up’.
He says he was dismissed from his workplace two years ago immediately after his former employer discovered that he was HIV-positive. He worked as a horse-riding instructor and stable manager for Mooikloof Equestrian Centre at the time.
‘Two years ago I was called to meet with my manager, Mr Malan, and he was angry with me and he told me I am being dismissed for the fact that I had HIV. He told me I had to pack my bags and leave the premises immediately. And I refused to go because I had my belongings in the house which they gave me. Then, a few days later they man-handled me off the premises’, Allpass recalls.
He then took the matter up and challenged his former employer in the Labour Court. He was represented by Section 27 and Webber Wentzel Attorneys. During cross-examination Allpass’s former employer claimed that the dismissal was not due to his HIV status but a ‘breach of trust’ because Allpass had not disclosed his HIV status during the initial job interview. The respondents were not present in court.
In her judgement, Judge Urmilla Bhoola said the respondents had to pay for legal costs incurred by Allpass as well as remuneration for the next 12 months.
Meanwhile, human rights organisation, Section 27 has hailed the ruling, saying it sends a clear message that HIV-positive people cannot be discriminated against. Director of the organisation, Mark Heywood, has described it as another break-through for people living with HIV/AIDS.
‘The message is that you cannot discriminate against people with HIV.
The second message is that people with HIV should know that the law protects them and that they should come forward and seek the protection of the law because if they go to court and their case is clear, they will win in court and the employer will be forced to pay compensation or legal costs’.
He says they hope the judgement will push more employees who are in the same situation to also come forward.
‘We know that this is still going on at a large scale and it is not happening so much in the big companies, but these little employers where there is about five to 10 employees. Very often, those employers pay scant regard to labour law and scant regard to rights. The significance of this judgement is that it concerns a small employer and that the judge has said she doesn’t buy people who come and invent excuses after dismissal to try justifying what was in reality HIV infection’, says Heywood.
Advocate Adila Hassim says the case highlights two key issues facing South Africans today.
‘The key message is that even though we’ve come far in South Africa and with the great legal framework that we have and fantastic protection of rights, there is an inability for people to claim them. Two reasons are that most people are not aware of their rights, but in this case our client was fully aware and sought legal help. The second part is the inaccessibility of lawyers. If you cannot access legal services it’s unlikely that you will see your claim going all the way. Without ability to do that, there is insufficient pressure on the smaller employers in these circumstances to change their practises’.
Section 27 urges people who feel that they have been discriminated against to seek legal help, in spite of the fact that they might not have money to pay lawyer fees.