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Judgment reserved in alleged unfair dismissal case (Gary Shane Allpass v Mooikloof Estates)

On December 2nd 2010 judge Urmila Bhoola of the Labour Court reserved judgment in the case of Gary Shane Allpass v Mooikloof Estates (Proprietary) Ltd. Amongst other things, the case concerns the alleged unfair dismissal of a horse riding instructor on the grounds of his HIV status.

The applicant, Mr Gary Allpass, is an award-winning horse rider and instructor who has been living with HIV since 1992. He was represented in court by Advocates Warren Banks and Adila Hassim, who were instructed by Webber Wentzel Attorneys. Hassim is the head of litigation and legal services at SECTION27. SECTION27 has worked closely with Webber Wentzel in preparing for this trial, with a particular focus on the medical evidence.

The hearing started on Monday 29 November. Over three days the Labour Court heard testimony from Allpass’s former employer, Mr Dawie Malan, who claimed that the dismissal was not due to HIV, but a ‘breach of trust’ because Allpass had not disclosed his HIV status during the initial employment interview. Allpass, on the other hand, stated that within a day of disclosing his HIV status on a personal particulars form to his former employer, he was summarily dismissed – on the basis of his failure to reveal his HIV status during his job interview.

Not only was Allpass dismissed, but a few days later he was also physically manhandled and removed by security guards from the estate where he worked and lived. According to Allpass, the guards called him a “moffie and a vagrant” as they went about evicting him. The truthfulness of this incident was not challenged by the respondents who only disputed whether it was connected to them directly.

The Court also heard expert medical evidence from Professor Francois Venter, the president of the Southern African HIV Clinicians Society and Deputy Executive Director of the Wits Institute for Sexual Reproductive Health, HIV and Related Diseases. Venter spoke about the nature and treatment of HIV infection and the capacity of people with HIV to work.

On 2 December closing legal arguments were made by both parties.

In their arguments the respondent’s counsel essentially argued that Allpass’ testimony was not to be trusted by the Court and that his complaint was an attempt to “climb on the HIV bandwagon to bolster his claim.” Counsel claimed that ‘there is a borderline where the protection given to HIV positive people has everything to do with privacy, and where witholding this information is sheer opportunism’.

The case has revealed that many employers still misunderstand the nature of HIV, their obligations and the law, ordinarily responding with prejudice and stigma to people with HIV instead of the manner required by our Constitution.  It was a salutary reminder on World AIDS Day 2010 of the ongoing need for public education about HIV and human rights and for vigilance in the workplace.

Reports in The Times about the case are available here:

http://www.timeslive.co.za/local/article791741.ece/Fired-for-being-HIV-positive

http://www.timeslive.co.za/local/article793854.ece/HIV-man-takes-a-brave-stand