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Workplace Rights

There are various laws that protect individuals from discrimination in the workplace.

3.1 Laws

1. The SA Constitution (HTML)

The Bill of Rights says:

  • everyone has the right to fair labour practices
  • everyone has the right to equal treatment
2. The Labour Relations Act (LRA) ( WORD)

The Labour Relations Act prevents employees from being discriminated against because of a disability (which includes HIV/AIDS).

3. The Employment Equity Act (EEA) (HTML; PDF)

The Employment Equity Act specifically prohibits unfair discrimination of people at work on the grounds of their HIV status. It also prohibits employers from testing for HIV/AIDS in the workplace, unless permission is granted by the Labour Court.

4. The Occupational Health and Safety Act (HTML; WORDwink and Mine Health and Safety Act (HTML)

Employers are responsible for ensuring that their employees are not at risk of HIV-infection at work. Employers must provide rubber gloves and train staff to use universal precautions when dealing with blood.

5. Compensation for Occupational Injuries and Diseases Act (COIDA) ( WORD; PDF)

Employees have a right to compensation if they get infected with HIV in a workplace accident.

6. The Medical Schemes Act No 131 of 1998 and Regulations: Government Gazette 20556 (HTML)

The Medical Schemes Amendment Act of 1998 prohibits discrimination based on "state of health". People with HIV/AIDS are entitled to reasonable care with "minimum level benefits" including the treatment of opportunistic infections. The schemes do not have to provide antiretroviral drugs.

Also see: Black Sash/ETU Paralegal advice manual chapter on HIV-AIDS and the Law

3.2 Rights in the Workplace

The Employment Equity Act includes the Code of Good Practice on Key Aspects of HIV/AIDS and Employment which offers guidelines to employers to ensure that people who are HIV-positive are not discriminated against in the workplace.

What an employer cannot do
An employer cannot: Relevant legislation
Test a person for HIV unless deemed justifiable by the Labour Court Section 7(2) of the Employment Equity Act
Demand to know a person's HIV status when applying for a job, in their employment or when they take sick leave Common law and Section 14 of the Constitution of South Africa Act, No. 108 of 1996
Disclose an employee's HIV status to anyone without consent Common law and Section 14 of the Constitution of South Africa Act, No. 108 of 1996
Dismiss an employee arbitrarily for being HIV-positive Section 187(1)(f) of the Labour Relations Act, No. 66 of 1995
Unfairly discriminate against an HIV-positive employee Section 6(1) of the Employment Equity Act
Provide an unsafe workplace where the risk of occupational exposure to HIV is not minimised Section 8(1) of the Occupational Health and Safety Act, No. 85 of 1993 and Section 2(1) and Section 5(1) of the Mine Health and Safety Act, No. 29 of 1996
Source: Code of Good Practice on Key Aspects of HIV/AIDS and Employment

3.3 Employment and the "Capacity to Work"

If an employee is unable to do their job properly because of their illness, they can be dismissed ( Section 188(1)(a)(i) of the Labour Relations Act, No. 66 of 1995). An employer must follow guidelines when dismissing an employee because of their poor work performance.

3.4 Legal Recourse

A person can argue their case at the Bargaining Council or Commission for Conciliation, Mediation and Arbitration (CCMA) if they have been dismissed or discriminated against unfairly. Disputes can also be referred to the Labour Court.

Also see: For further information read: Black Sash/ETU. HIV/AIDS and the law (Chapter 8 of the Paralegal advice manual)
Wits Journalism Anova Health

The project is jointly managed by the Anova Health Institute and the Journalism and Media Studies Programme at the University of the Witwatersrand. The project is funded by by the Health Communication Partnership based at the Johns Hopkins Bloomberg School of Public Health Centre for Communication Programmes and the President’s Emergency Plan for AIDS relief through the United States Agency for International Development under terms of Award No. JH/HESA-02-05 and through the Anova Health Institute through PEPFAR via USAID under Award No. AID-674-A-12-00015.