Lemo v. Northern Air Maintenance (Pty) Ltd.

The Applicant, Lemo, was employed by the Respondent, Northern Air Maintenance, as a trainee aircraft engineer. During a period of four years, the Applicant’s health deteriorated considerably. He consistently exhausted his annual and sick leave days and took unpaid leave, often for months at a time, in order to obtain medical assistance. Due to his poor attendance record, the Respondent requested the Applicant to see a private doctor, ostensibly to assess whether he was fit to perform his duties. The Applicant refused, stating that the hospital he attended best suited his medical needs. The evidence suggested that the Respondent wanted the Applicant to see a private doctor who would regard the Respondent as “family” and reveal the Applicant’s medical status.

The Applicant subsequently disclosed to the Respondent that he was HIV-positive and he received a letter of termination the following day. The letter cited the Applicant’s “continual poor attendance over the last three years” as the reason for his termination. The Respondent further claimed that the Applicant’s refusal to submit to medical examination by a private doctor contributed to its decision to dismiss him. The Applicant claimed he was terminated solely on the basis of his HIV status.

The Applicant protested his dismissal at the district labour office. The labour office found that his dismissal was unfair and the Respondent was ordered to pay the Applicant the equivalent of three months’ salary as compensation. The Applicant, however, was not satisfied with the decision of the labour office and he attempted, unsuccessfully, to appeal the decision to the regional labour officer. This suit followed.

The Court held that the Applicant’s dismissal “was substantively unfair because there was no valid reason” for it.

The Court provided four reasons for its holding.

• Although the letter of dismissal indicated the Applicant’s excessive absenteeism as the reason for his dismissal, the Court noted that the Respondent had tolerated the Applicant’s absenteeism during a three-year period.
• The Court rejected the Respondent’s assertion that the Applicant’s refusal to submit to a medical examination contributed to its decision to dismiss him. It observed that the Applicant did not in fact refuse to submit to an examination, but had rather objected to an examination by a private doctor when his doctors were capable of conducting such an examination and were already familiar with his illness. Moreover, the Respondent did not have a right to dictate to the Applicant whom he should consult.
• The Court stated that there was no evidence prior to the Applicant’s dismissal that he was incapacitated on account of ill-health and unable to perform his duties.
• The Court held that the Respondent waived its right to take action against the Applicant on account of his absenteeism by failing to do so over the course of three years.

The Court thus held that the reason offered by the Respondent for dismissing the Applicant “was a smokescreen intended to obscure the real reason, namely, that the respondent's long held suspicion that the applicant might be HIV positive was confirmed.”

“It is my considered view that where an employee has become ill, and has in consequence been not reporting for duty for a cumulatively long period of time, whether such illness is a result of HIV/AIDS or any other illness, and is inconsequence unable to perform his duties, the normal rules as to termination of services for inability to perform the job apply. As I see it, even in the case of progressive incapacitation, the employee cannot be dismissed without first being given a fair enquiry, at which the nature of the incapacity; the cause of the incapacity; the likelihood of recovery; improvement or recurrence; the period of absence; its effect on the employer’s operations; and the employee’s length of service, to mention only some of the critical factors are considered.

Where an employee is HIV positive, employers should refrain from any discriminatory practices towards an HIV/AIDS positive employee, and should view the employee in the same way as it would any other employee suffering from a life threatening illness. This is so because as a general rule an HIV positive employee may for years, even decades, experience no interference with his or her capacity for service in fulfilment of the demands of his job. This is particularly so in this era where anti-retroviral drugs are readily available.” (Page. 17)

“On the evidence presented in this matter, it appears to me that the reason advanced by the respondent for dismissing the applicant, namely, his ‘continual poor attendance over the last three years’ was a smokescreen intended to obscure the real reason, namely, that the respondent’s long held suspicion that the applicant might be HIV positive was confirmed. In any event, as I have said earlier, even assuming that the reason advanced is not a smokescreen, it would be arbitrary and unfair for the employer to tolerate the applicant’s illness for so long, only to wake up one day and without consultation, decide to dismiss him. The respondent acted arbitrarily and unfairly and I refuse to accept that the timing of the dismissal was unrelated to the applicant’s disclosure of his status, and that it was merely coincidental. The totality of the evidence of this case suggests that the probabilities are that the applicant was dismissed because he was HIV positive.” (page. 21)