Naledi Xhosa* won an out-of-court settlement this week when she sued her former employer for unfair dismissal after Xhosa tested positive for HIV and Hepatitis B.
Xhosa was immediately dismissed on the grounds that she posed a health risk to the employer’s infant and family.
The case — brought in the Labour Court — underlines rules contained in Section Seven of the Employment Equity Act that set out strict conditions for HIV testing, noting that only if a person’s physical condition prevents him or her from meeting an “inherent requirement” of a job, may their HIV status taken into consideration when deciding whether to employ them. At the same time, it highlights the complexities of the intimate relationship between domestic workers and employers in light of the HIV pandemic.
In October 2002 Xhosa applied for a job looking after the four-month-old baby of Heike Mayer, an attorney, and cleaning Mayer’s house. She was told she needed to undergo a medical examination and that Mayer would pay for it.
In court papers Mayer said: “The applicant [Xhosa] was informed that it was a condition of her employment that she undergoes a blood test and general medical tests, which would inter alia include an HIV test, Hepatitis test and TB test.”
In her court papers Xhosa said she had agreed to the medical examination because she was desperate for the job: “I thought that if I didn’t go, they would think I had some sickness and then wouldn’t employ me.” She said she was not told what the medical examination would be for, and there was no discussion of HIV or Hepatitis.
It was only weeks later that Xhosa went to the doctor with Mayer’s housemate and was given her positive test results, without counselling.
“He [the doctor] asked me my name and surname and then he … gave me two pieces of paper. I asked him why I should go to Tembisa. He then told me that I had HIV and Hepatitis B. I was in tears.”
On the same day, according to court papers, Mayer gave Xhosa a letter terminating her employment, together with R600 as severance pay. The tone of the letter was regretful, saying: “Your visit to the doctor has resulted in you being diagnosed with Aids and Hepatitis B and I obviously cannot take the risk that the children may be infected.”
Mayer said in her court papers that the doctor informed her there was no cure for Hepatitis B and that prevention against contamination was extremely important. The doctor’s allegedly unethical behaviour in this case is being investigated by the Health Professions Council.
For Mayer this was a very sensitive issue. “The relationship between childminder and employer is one of trust and the working mother should have peace of mind when entrusting her child to a childminder. The risks that you expose your family to is one of personal choice.” She said her major concern was for the safety of her infant child because the childminder would be taking care of the most intimitate needs of her baby.Â
Lawyers for Xhosa said this is the first of many cases to show the impact the HIV pandemic has on domestic workers, a sector still largely unregulated, with high unemployment rates and where workers find it difficult to negotiate fair practice.
Anneke Meerkotter of the Aids Law Project at the University of the Witwatersrand’s Centre for Applied Legal Studies, which represented Xhosa, said the rights of domestic workers must be taken seriously, with the knowledge that any unlawful testing, discrimination or unfair dismissal will have consequences.
“In the light of current medical evidence that clearly indicates an insignificant risk of HIV transmission in the employment setting of a domestic worker or child minder, and given the prohibitions against unlawful medical and HIV testing, and unfair discrimination on the basis of HIV status imposed by law, employers can no longer claim ignorance of medical and legal issues,” she said.
Expert evidence in the papers concludes that Hepatitis B and HIV are transmitted largely via sexual intercourse. Dr Adrian Puren, deputy director of medical services at the National Institute for Communicable Diseases, said there are universal precautionary measures that can be used in schools and households to prevent HIV transmission, such as using gloves and covering up broken skin.
* By law the domestic worker’s real name could not be published