Tuesday, September 22, 2020

Court of appeal hears case of dismissed HIV positive employee

The Court of Appeal is expected to listen and make a ruling at its sitting in the next two months, July 2009 in a case in which a Chinese company, HITECON (Pty) Ltd, would like to be exonerated for dismissing its employee on the basis of his HIV status.

According to particulars of the appeal as stated in Notice and Grounds of Appeal filed with the Court of Appeal in Lobatse on 26 August, 2008, HITECON submits that it was dissatisfied with the decision of the Industrial Court as contained in the order or judgment on Case NO: IC 1185/2007.

The matter that culminated in the judgment at issue was apparently enrolled for a default hearing on 5th August, 2008, meaning that the respondent in the case, now the applicant in the appeal, had failed to present his defending arguments in time, prior to the hearing.

It was also found that HITECON had taken unnecessarily long to apply for consideration of their presumed reasons, in spite of the processes of the courts demanding so.

Accordingly, Industrial Court Judge, Justice G.L. Tebogo-Maruping explained that his judgment had to be based solely on the evidence of the Applicant as the Court decided to proceed with the matter by way of a default hearing.

Furthermore, the Industrial Court had ruled that Benson Modukanale was unfairly dismissed and also held the view that Modukanele’s own submission that he was dismissed solely for being HIV positive was agreeable.
To support the argument, all indications as well as evidence led in court showed the employer never offered the employee the opportunity to defend himself.

Giving credence to his position, the judge made reference to a previous judgment by Justice Dingake, which stated that being HIV positive alone cannot provide a valid reason for dismissal of an employee.

He said this was especially so “where it has not been established that such employee was thereby affected by incapacity”.

HITECON’s attitude was said to be inconsistent with Article 4 of the ILO convention No. 158 of 1982.
The article provides that, “The employment of a worker shall not be terminated unless there is a valid reason” for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment of service.

In addition, Article 7 of ILO convention No. 158 1982 also states that the employment of a worker shall not be terminated for reasons related to the workers conduct or performance.

The clause further states that not unless the employee would have been given an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide the opportunity.

In the case of HITECON, they are still to grant the courts the benefit of doubt as to their basis for dismissing Modukanele without first giving him audience.

Against that background, the Industrial rules that Modukanele be compensated for accrued leave in the time of P1 800 (calculated at P69.24) overtime pay of P3, 425.40
Calculated (88days x 3 x 815) x 15.

The number of day as for double time was adjusted from 27 days to 35 days given that the employer worked even on rest period and holidays. That led to the total of P6, 660 (30 x 11 x 8.65) x 2

In total, HITECON had to pay P21, 078.30 by the 29th August 2008.

Basing on HITECON’s filed Notice of Appeal, as registered by their Attorneys, Motsamai Attorneys, it is the applicant’s prayer that the court of Appeal reverse Maruping’s default judgment and, further they be granted hearing, which they argue had been denied.

For his part, Uyapo Ndadi maintains that the case is a human rights violation one than anything else.

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The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.