Protecting employees living with HIV/AIDS in the workplace: a comparative study

Gounden, Subashnee

Protecting employees living with HIV/AIDS in the workplace: a comparative study

Files

Protecting employees living with HIV-AIDS in the workplace.pdf(2.81 MB)

Date

2017

Authors

Gounden, Subashnee

Publisher

University of Zululand

Abstract

This dissertation takes its focus from the plight of millions of South Africans living with HIV/AIDS. The disease predominantly affects adults of a working age resulting in direct impact on the workforce. Protecting the HIV/AIDS positive worker is crucial to ensuring a harmonious working environment, limiting new infections and curbing pre-existing infections. The focus of this study was to investigate the degree of protection or lack thereof extended to HIV/AIDS positive employees in the workplace. In an effort to analyse and explore the possible remedies available to HIV infected employees, it was necessary to conduct a comparative analysis between other international jurisdictions such as the United States of America and Australia. It was concerning to note that despite statutory and common law demands on employers to provide a safe working environment, there appears to be an increase in the number of HIV/AIDS occupational transmission cases worldwide. In an effort to address such challenges, specifically in South Africa, the researcher investigated the possibility of incorporating the doctrine of vicarious liability into the South African legal system more so against the backdrop of existing legislation in the form of Section 35(1) of the Compensation for Occupational Injuries and Diseases Act. Investigations pertaining to the protection of employees took place through a comprehensive analysis at pre-employment, continued employment and dismissal stages. This was achieved through thorough review of literature, legislation, case laws, journal articles, reviews and gazetted articles both nationally and internationally. A critical analysis of the existing legislation in South Africa purporting to protect HIV infected employees in the workplace suggests the need to move towards a progressive legal framework which incorporates a wider range of remedies available to the employee. The incorporation of the doctrine of vicarious liability into our legal system in future may be the solution to advancing the current legal framework and adequately addressing the plight of HIV positive employees. Its success would depend on certain factors being met, such as dual capacity being established and limitation to strict liability cases. Such a progressive framework will hold employers responsible for failure to implement safety measures in respect of occupational exposure at the workplace, and allow for aggrieved employees to choose the mode in which they wish to claim compensation, allowing for a wider range of remedies in line their democratic right to freedom of choice.

Description

A thesis submitted to the Faculty of Commerce, Administration and Law in fulfillment of the requirements for the Degree of Master of Laws (LLM) in the Department of Law at the University of Zululand, South Africa, 2017.