LATEST CASES ON DISCRIMINATION Verlie Oosthuizen

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE (2011) 32 ILJ 1637 (LC) Case based on two claims relating to discrimination on the grounds of the Applicant’s HIV-positive status. Claim A: Automatically unfairly dismissed on the grounds of his HIV status in terms of section 187(1) of the LRA alternatively that his dismissal was procedurally and substantively unfair in terms of section 188 of the LRA

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued Claim B: Unfair discrimination on the grounds of HIV status in terms of section 6(1) of the EEA read with section 50(2)(b) of the EEA Allegation that he had been dismissed in a manner hat violated his constitutional rights including those of privacy and dignity. Sought maximum compensation in the sum of 24 months remuneration in terms of section 194(3) of the LRA alternatively maximum compensation of 12 months in terms of section 194(1) of the LRA

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued MATERIAL FACTS Applicant appointed as a stable yard manager and horse riding instructor at the Mooikloof Equestrian Centre at the end of October 2008 – he began work on 1 st November 2008 and was provided with accommodation at the estate. He was on a three month contract which would be reviewed thereafter. In his pre-appointment interview the applicant was asked about his health, his marital status and his financial situation.

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued The applicant revealed that he was in a same sex civil union and that he was in good health. He was told by the representative of the respondent, Mr Malan jnr, that there was another same-sex couple working for the centre and living on the estate and that the respondent “…had no problem” with this. Although the applicant had been diagnosed with HIV some 18 years previously he did not reveal his status at the interview.

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued On 10 th November 2008, the applicant and the other homosexual employees of the respondent were requested to fill in a “personal particulars form”. They were the only employees who were asked to do so. On the form the applicant was asked to list allergies and medications that he currently used.

The applicant revealed his HIV status on the form as well as his asthma, deep-vein thrombosis and penicillin allergy and listed his medications including AZT’s. 3 days later Malan confronted him regarding the contents of the form and an argument ensued. The applicant was dismissed and told to vacate the premises immediately. The applicant received a notice of dismissal the next day stating that he had been dishonest in his interview and that he was obviously “severely ill” and unable to complete his duties. On the 18 th November 2008 the applicant was forcibly removed from the premises and verbally abused by the security manager of the estate. In the applicant’s “Final Notice of Dismissal” on 19 th November 2008 the reason for his dismissal was stated as “fraudulent misrepresentations” ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued

ISSUES TO BE DECIDED: 1)Whether the dismissal was automatically unfair or just procedurally and substantively unfair and the appropriate compensation 2)Whether the employee was discriminated against on the basis of his HIV status and the appropriate relief

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued Respondent claimed that the employee should have disclosed his HIV status at the interview and that the applicant was not dismissed due to HIV status but rather because he did not disclose that status at the interview The respondent also tried to claim that the applicant’s allergy to penicillin made it impossible to perform his duties as a stable manager as he would not be able to administer injections of depocillin The respondent denied involvement in the manner in which the applicant was evicted from the property and the manner in which he was spoken to

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued The applicant alleged that although he did not reveal his status in the interview it was a matter of public record as there had been newspaper articles about his management of his disease and it was well known in the equestrian fraternity. He reiterated that he was in good health and his medical expert confirmed that his HIV regimen was well controlled and that he could work normally.

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued APPLICABLE LAW In terms of section 187 HIV is not a specifically proscribed ground although in Bootes v Eagle Ink Systems Kwazulu-Natal (Pty) Ltd (2008) 29 ILJ (LC) it was held that it can be regarded as an arbitrary ground as envisaged in section 187(f) of the LRA. The judge held in that case that it was widely acknowledged that a dismissal on the basis of n employee’ HIV status was discriminatory unless it could be proved that it was an inherent requirement of the job to be HIV negative. The EEA specifically proscribes discrimination on the basis of HIV status in terms of section 6

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued The Code of Good Practice on Key Aspects of HIV/AIDS in Employment issued in terms of the EEA endorses non- discrimination on basis of HIV status and specifically states that there is no obligation for an employee to disclose their status. Hoffmann v SAA (2001) (1) SA 1 (CC) held that employees with HIV “…enjoy special protection in our law”

REASON FOR APPLICANT’S DISMISSAL Respondent alleged that the dismissal was based on the applicant’s misconduct alternatively that he would not be able to perform his duties due to his allergy to penicillin and his other illnesses The applicant was never charged with misconduct or called to a disciplinary enquiry The court found that the “inescapable facts are that the applicant had no medical or physical impediment preventing him from performing his duties… the evidence establishes that the respondent’s primary concern was the applicant’s HIV status… this is the real reason for the dismissal or at least the dominant reason” ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued

The court held that this resulted in a finding that the dismissal was as a result of discrimination on an arbitrary ground and amounted to an automatically unfair dismissal. The discrimination and dismissal could not be justified on the inherent requirements of the job as the respondent’s “defence” that the penicillin allergy affected the applicant’s work could not be justified by the evidence presented. This defence was described as a “thin veil” designed to disguise the real reason for the dismissal. ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued

COMPENSATION The court confirmed that compensation for an automatically unfair dismissal should be no less than the amount the employee would have been entitled to receive if reinstatement had been sought and should reflect the serious nature of the transgression The length of the contract was relevant – i.e. 3 months only It is competent for the court to award relief for dismissal under LRA and EEA on same set of facts. Declined to do so in this case

ALLPASS v MOOIKLOOF ESTATES (PTY) LTD t/a MOOIKLOOF EQUESTRIAN CENTRE continued The court awarded 12 months remuneration reflecting both the punitive element for unfair discrimination on the grounds of HIV status. The court dismissed the applicant’s second claim in terms of the EEA.

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 Labour Appeal Court case: Prohibition of male correctional services officers wearing dreadlocks led to their dismissal from Pollsmoor Prison They had clean disciplinary records and had been employed and worn dreadlocks for a number of years prior to the Dress Code being strictly implemented by the new Area Commissioner. After refusing to cut off their dreadlocks citing religious and cultural reasons they were suspended and eventually dismissed for failure to comply with the dress code and failure to obey with a direct instruction

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 “Rasta man” hairstyles were specifically prohibited in the Dress Code for male correctional officers only. Female correctional officers had no such prohibition and Rastafarian Pollsmoor inmates were also permitted to wear dreadlocks The officers alleged that they had been automatically unfairly dismissed on the basis of their religion, culture and gender. The Labour Court found that there had been unfair discrimination on the basis of gender ONLY and that the Department could not justify the discrimination. The dismissals were found to be automatically unfair and the officers were awarded 20 months compensation.

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 The Department appealed the judgment and the officers cross appealed saying that they were also discriminated against on the basis of culture and religion The Labour Court had found that the respondents wore dreadlocks due to the religious and cultural beliefs that they sincerely held, however, it held that they had not established discrimination on the basis of religion or culture

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 The issues before the court Determine whether there has been differentiation between employees imposing burdens or disadvantages or withholds benefits / opportunities / advantages from certain employees; 1.There was a differentiation in terms of hairstyle which was not facially neutral; 2.Women were allowed dreadlocks whilst men were not; 3.Certain male officers could not express their religious or cultural practices

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 Court recognised that they were only concerned with whether the belief was sincerely held. The objective and causative reason for their dismissal was simply their gender and their beliefs. “But for their beliefs (and gender) the respondents would not have been dismissed.”

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 In order for the dismissal not to be automatically unfair the discrimination would have to be justifiable. Once the discrimination is established it is automatically presumed to be unfair unless it is proved to be justifiable.

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 The Departments reasons for the dismissal were to ensure compliance with the Dress Code and address the general breakdown in discipline. The court commented that the discrimination will not be saved due to a “benign” motive and does not require that the employer knows that they are behaving in a discriminatory manner.

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 Court said it must look at the purpose of the prohibition, the relation between the limitation and its purpose and less restrictive means of achieving the purpose The Department’s reasons were to achieve uniformity and enhance discipline and security. They felt that deviations would “open the floodgates”

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 The Commissioner felt that the Dress Code was neutral and applied to all religions. He could not adequately explain the gender difference. The Court held that while some deference must be shown to the insight and expertise of the particular state department the accommodation of different cultures must be evaluated.

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 There must be a “rational and proportional relationship between the measure and the purpose it seeks to achieve.” “Employers… should, wherever reasonably possible, seek to avoid putting religious and cultural adherents to the burdonsome choice of being true to their faith at the expense of the management perogative and authority…”

DEPARTMENT OF CORRECTIONAL SERVICES & ANOTHER v POPCRU & OTHERS (CA 6/2010) [2011] ZALAC 21 The court found that there was no obvious rational connection between the ban on dreadlocks and the achievement of greater discipline and security in the prison. The prohibition on dreadlocks was found to be unfair, disproportionate and overly restrictive. The dismissals were found to be automatically unfair because they were due to discrimination on the grounds of religion, culture and / or gender

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