The new Public Health Act: A different perspective
Nkiwane Ndaba | Friday October 11, 2013 14:59
Epidemics can and have changed history. Eight hundred years ago, Europe was dominated by the feudal system. Half a century later was the devastation left by The Plague, the black death of 1348 that killed an estimated third of the population, making labour a scarce commodity.
Over the recent past, companies have worked round the clock to come up with policies that emphasise that no employee will be dismissed, retrenched or have their employment terminated merely on the basis of having a life-threatening condition such as HIV/AIDS.
The stigma attached to certain diseases, including HIV/AIDS, has in one way or another led to loss of jobs to the infected because employers would mistakenly think that being HIV positive is a dismissible offence. This is an area in business management which must not be neglected as it can consequently result in the deterioration of the employer/employee relationship. A deeper understanding of these developments and a thorough knowledge of the existing legislation are absolutely necessary because it affects the economic wellbeing and the future of the business, as well as the welfare of the affected employee.
As a general rule, employers are not entitled to conduct medical tests in respect of employees on a mere whim. The management of the HIV/AIDS pandemic, which has brought crisis of immense propositions, has been a subject of fearful debates in the courts of law. The recent amendment of the Public Health Act took the stakes to an even higher level. The dignity and privacy of an individual are said to be exposed to prejudice. I have gone through the said new Act with a fine comb and I will respectfully differ with its doomsayers. There is, in my considered view, no harm or threat posed by the said Act to any one, let alone the infected! However, I am constrained to go any further since this is not the focus of this article.
Like most employment issues, refusal to follow lawful instructions is a cause for concern. Failure to obey a lawful and reasonable instruction or order is valid ground for dismissal. However, in order for the employer to terminate an employee for such refusal, strict common law prerequisites must be complied with. Failure to follow a lawful and reasonable instruction - insubordination - must at all times be distinguished from other types of misconduct such as insolence; that kind of behaviour where the employee makes a mockery of the employer's rules and regulations. A general rule is that unless insolence is particularly gross, it must be met with a written warning, especially for first offenders.
The common law prerequisites to be complied with when dealing with insubordination are: the instruction must in fact have been given, the order must be lawful, the order must be reasonable and the refusal or failure must be sufficiently serious to warrant dismissal.
In Botswana, the requirement for medical check-up, irksome as it may be, has always been a statutory requirement enshrined in the now repealed Public Health Act. In the said Act, however, the issue of medical testing was not specific to HIV but was directed to communicable diseases in general. In New Public Health Act of 2013, Section 104 (1) specifically provides for guidelines on HIV testing, prevention and control. Taking a few steps back, Section 53 (of the new Act) states: 'A health officer or an authorised officer may, at any reasonable time of the day, enter and inspect any premises which he or she has reason to believe that (a) any person suffering, or who has recently suffered from any communicable disease is or has recently been present; or (b) any of its inmates has recently been exposed to the infection of any communicable disease, and medically examine or cause to be medically examined any person in the premises for purposes of ascertaining whether the person is suffering or has recently suffered from that disease.'
What are communicable diseases? The Act of 2013 defines them as 'any disease which can be transmitted directly or indirectly from one person to another' while the Oxford Advanced Learners Dictionary (2009) describes communicable diseases as those 'that can pass on to the other person...' From the above definitions, it leaves little doubt that HIV/AIDS is a communicable disease!
Insubordination or failure to obey a lawful and reasonable instruction is a more serious offence than mere rudeness because it presupposes a calculated breach by the employee in question of their obligation to obey the employer's instruction. The courts are, however, quick to point out that the insubordination should be both serious and/or persistent in order to justify dismissal. Employers should also be minded that before coming to a conclusion that the employee was insubordinate, the courts look at whether the refusal to honour the instruction amounts to insubordination or at all. This is premised on the fact that at times, an employee is required to, for instance, do work that is markedly different from that which they are employed to do. For example, instructing a Bank Teller to go and clean toilets!
Where an employee refuses to submit their blood for medical examination, what are the steps to be taken by the employer? The starting point would be that the employee must be accorded an opportunity to state their case. This is a rule of natural justice which traces its roots to the Book of Genesis 3:9-11. In giving the employee such opportunity to state their case, the employer would obviously make reference to the provisions of the company's conditions of service as guided by Section 26 (4) of the Employment Act of Botswana, which provides that an employer may terminate a contract of employment summarily where the employee is guilty of 'serious misconduct' in the course of their employment. The said section lists a number of examples of what constitutes serious misconduct, and failure to obey a lawful and reasonable instruction makes such list.
Management should, as a general rule in dealing with any type of misconduct in the workplace, make sure that progressive and corrective action is taken to address the problem. If no improvement in the conduct of the employee occurs, then further disciplinary action may be taken.
Legal and constitutional issues have been raised before the courts in an attempt to prove that submitting one's blood for HIV testing and dismissal for either testing positive or refusing to submit to the requirement constitutes a violation of certain Human Rights. Certain commentators have come up strongly against the new Public Health Act. At issue, it appears, is the counterbalancing of individual X's rights and interests against those of individual Y.
In the landmark case of Sarah Diau v. Botswana Building Society, IC 50/2003, the arguments were mostly based on Sections 3, 7, 9 and 15 of the Constitution of Botswana. In the said case, Diau was employed on a probationary basis by BBS as a Security Assistant. Her letter of employment did not mention anything in relation to HIV testing. Diau would later receive an instruction that she was to submit a certified document of her HIV status. She declined to submit her HIV status, arguing: 'HIV status is a personal right, not for public or employment purposes.' One of the questions before the court was whether BBS, by dismissing her for refusing to undergo an HIV test, violated any of her constitutional rights. It was concluded that HIV testing violated her constitutional rights as contemplated by Section 9 (1) of the Constitution of Botswana and that the termination of her contract of employment for refusal to undergo an HIV test without offering counselling constituted inhuman and degrading treatment contrary to Section 7 (1) of the Constitution. (See also the cases of Nelson Mathodi Lemo v. Northern Air Maintenance (Pty) Ltd, IC 166/04, Rapula Jimson v. Botswana Building Society, IC 35/03)
The stigma associated with HIV/AIDS will always make those called upon to submit their blood for medical testing to view such requests with suspicion and resentment. As a general rule, it would be incompetent for an employee to be dismissed for such refusal. But exceptions do allow an employer and, in the advent of the New Public Health Act, an officer to demand for such testing and refusal thereof shall constitute insubordination and a dismissal is inevitable. In terms of the said Act, such tests shall only be done at the signature of a magistrate who would have determined, on a balance of probabilities, that it would have been in the interest of public health or public interest that such a test was done. What is to be put into consideration is the employee's nature of the job and the requirements thereof in relation to standing company or other statutory rules. I am tempted to argue here that an employee who works in a blood-handling facility, and is responsible for the care of donated blood stored in the facility, and administers such blood during a transfusion exercises, may face dismissal if they refused to submit their blood sample for testing purposes.
In the case of Gakologelwang Mulalu v. Payless Supermarket IC 540/2004, the Industrial Court had an opportunity to deal with a matter where Mulalu was employed as a general shop assistant and part of her duties required her to work in the Deli. She was instructed to go for a medical check-up but she refused.
The instruction was in accordance with the now repealed Public Health Act which at Section 27 provided for a requirement for all food handlers to undergo a medical examination at least once per annum. The purpose of this was to ascertain whether such officer was infected with or a carrier of communicable diseases. The court ruled that such refusal was unlawful and that the employer was correct in terminating the contract of employment of Mulalu for such insubordination. (See also Orange Toyota (Kimberly) v. Van der Walt & Others (2000) 21 ILJ, at page 298)
What should be emphasised here is that pre- and post-HIV testing as part of assessing the fitness of the candidate to work is unnecessary and should be discouraged. Section 23 (b) of the Employment Act (as amended) prohibits the termination of the contract of employment for an employee for '(e) any other reason which does not affect the employee's ability to perform that employee's duties under the contract of employment.' It is conclusive that being HIV positive on its own does not preclude an employee from performing their duties in any manner whatsoever.
Even in the advent of the New Public Health Act, it can be safely concluded that the HIV status of an employee will not be a reason to terminate their contract of employment and that HIV testing has not been given on a silver platter whereby employers will 'line up' their staff for such tests indiscriminately. Strict rules are in place and these must be followed. The chances of employee rights being violated as a result of such tests as sanctioned by the Act are very remote. The Act clearly states that no one shall be subjected to an HIV test for purposes of employment. There is therefore no cause for alarm as it were.
Employers would do well to take professional legal advice before acting on any matter that may have an effect on the employment contract in order to avoid being faced with disputes of unfair dismissal. Further, employers should keep on keeping on loving and caring for the infected and affected and let not any employee's status be the reason to terminate their employment contracts, discriminate against them, deny them access to programmes and services.