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The influence of HIV/Aids on service contracts

The LWO Agricultural Employers’ Organisation highlights major agricultural labour issues.
Dealing correctly with HIV/Aids in the work place remains a headache for many farmers. Some prefer to ignore this growing problem.  “It is imperative for employers to formulate an internal HIV/Aids policy for dealing with a situation that could develop into a crisis for every employer.It is necessary to be informed of the legal directives on how to deal with the situation and to be prepared to handle it correctly,” says Danie de Villiers, general manager of the LWO Agricultural Employers’ Organisation.
De Villiers points out that a survey undertaken by the Human Rights Commission (HRC) showed that, should the department of health not speedily introduce an HIV/Aids awareness and support programme for farm workers, it could develop into a situation that threatens to cripple the agricultural sector.
Four acts of parliament prescribe to the employer how to deal with the problem:

  • The Constitution;
  • Equal Employment Opportunities Act;
  • Compensation for Occupational Injuries and Diseases Act; and
  • Labour Relations Act through the Code of Good Practice regarding HIV/Aids and certain other applicable stipulations of the Act.
  • Guidelines can be obtained from the LWO.
  • The most important aspect is the prohibition of discrimination against an employee because of any arbitrary reason, inter alia sickness/health, having nothing to do with an evaluation of the employer other than his/her ability to do his/her work.
  • Furthermore, the aims of the Code of Good Practice are to provide employers and employees with guidelines on how to deal with infected employees.
  • The most important principles are the following:
  • Create a safe working environment for all;
  • The drawing up of procedures to manage work place incidents and compensation claims;
  • Measures to prevent spreading of infection;
  • evelopment of strategies to evaluate and minimise the impact on the work place; and
  • Assistance to affected employees to enable them to work as long and effectively as possible.
  • “Differentiation” is not prohibited; “discrimination” is.
  • To discharge an employee when his/her health deteriorates is not necessarily unfair discrimination and the employer has the right to terminate a service contract.
  • Where discharge is found to be automatically unfair, an order may be made forcing an employer to pay 24 months’ salary (maximum). In the instance of ordinary unfair discharge an order of 12 months’ salary (maximum) may be imposed.

Avoid the following dangers:

  • Discharges based on what could otherwise be regarded as unfair and arbitrary may well be justified on the basis of certain characteristics making an employee unfit to properly execute a certain type of work (contained in the Labour Relations Act).
  • Problems arise with the overlapping of discharge based on discrimination and otherwise based on incompetence where an employee is actually dismissed because of unsatisfactory job performance as a result of illness.
  • Employers should establish more measures to prevent situations where infection could possibly spread.
  • During a hearing/investigation on incompetence the rights and confidentiality of an affected employee regarding his/her HIV/Aids status should be respected as far as possible.
  • When an employee becomes too ill to execute his/her duties, the employer should adhere to prescribed guidelines to terminate the employee’s service on the grounds of “incompetence”. These guidelines are contained in the Code of Good Practice and the LWO would be willing to assist in the process.
  • An employee cannot be compelled to undergo a test for HIV/Aids or to announce his/her status.

For further information, contact Retha or Marius at 0861 101 828.

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