Know Your Rights

by Bona staff

HIV affects millions of South Africans in the workplace. And even though living with HIV brings about its own challenges, stresses and fears, and can leave you feeling insecure about your future, it is good to know you are protected by the Bill of Rights. In other words, you have the exact same rights that protect all citizens – including in the workplace.

Here Are The some Common Rights Of HIV+ Employees In The Workplace:

Disclosure and privacy: An HIV+ employee is not obligated to tell their employer their status. If you choose to tell your employer, this is done in confidence, and your employer is duty-bound not to tell anyone without your consent. Likewise, a doctor or healthcare worker is not allowed to disclose your HIV status to an employer without your consent. “Your status is a private issue and an employer cannot demand to know the cause of an illness,” says Elkington.

HIV testing:

  • When applying for a job you cannot be forced to have an HIV test.
  • An employer cannot force someone who is already employed to have an HIV test.
  • An employer cannot ask an employee to take an HIV test before being promoted or offered special training.
  • An employer cannot include an HIV test in a medical examination.

If the employer does not have permission from the court, then an employee can take steps against the employer when asked to be tested for HIV.

Unfair discrimination: The Employment Equity Act (EEA) was the first law to stae that employers may not unfairly discriminate against employees because of their HIV status. According to Elkington, “The Act deals specifically with discrimination in the workplace, making certain discrimination fair (like affirmative action), and others unfair and therefore unlawful, for example discrimination based on a person’s HIV status.”

What the act says about HIV:

  • You cannot be refused employment because you are HIV+.
  • An employer may not demote or refuse promoting an employee because they are HIV+.
  • You cannot be fired, retrenched or refused a job because you have HIV.
  • You cannot be dismissed because you have HIV, but you can be dismissed for incapacity if you are too ill to work however, the usual procedure needs to be followed.
  • An employer cannot block an HIV employee from access to work training and development to further their careers.
  • An HIV employee is entitled to the same employee benefits (remuneration, annual and sick leave, medical aid, training and development, promotions, transfers, etc) as everyone else.

WHAT THE LAW SAYS…

The Constitution gives all employees the right to be treated fairly at work including the right to fair labour practices and the right to equal treatment and non-discrimination.

The Labour Relations Act (LRA) gives employees the right to be treated equally. It is an unfair labour practice to discriminate against an employee on any grounds (for example, race, gender, sex, colour, sexual orientation, age, disability and so on). Discrimination is ‘automatically unfair’ if it breaks any of the basic rights of employees such as discrimination on grounds of a person’s disability. The LRA also protects employees against unfair dismissals.

The Employment Equity Act (EEA) establishes equality and non-discrimination in the workplace, and is more specific about the rights of people living with HIV or Aids. The EEA explicitly prohibits unfair discrimination against people at work on the basis of race, gender, age etc – including HIV status – unless it is an essential requirement of the job.

PROTECT YOUR RIGHTS

A guide to standing up for your rights in the workplace.

  • For dismissals or discrimination issues refer to a Bargaining Council (BC) or the Commission for Conciliation, Mediation and Arbitration (CCMA) who will try to resolve the dispute by conciliation, mediation or arbitration.
  • Cases on automatically unfair dismissals and unfair discrimination will go directly to the Labour Court after conciliation at the BC or CCMA.
  • Employees can appeal against decisions of the Labour Court by going to the Labour Appeal Court.
  • Employees must contact the CCMA or BC within 30 days in respect of unfair dismissal cases, 90 days in respect of unfair labour practice, and six months in respect of unfair discrimination from the date of the alleged dismissal, unfair labour practice or discrimination.

– Aids Legal Network: www.redribbon.co.za/legal