M v Johannesburg Metropolitan Bus Services (Pty) Ltd (JS661/12) [2015] ZALCJHB 400 (13 November 2015) per Everett AJ.

Slowly but surely the Labour Court is giving effect to ILO Convention 111 that we ratified many years ago.  Discrimination can never be regarded as ‘fair’.  But ‘differentiation’ can be justified in certain defined instances.  The applicant claimed that on 27 March 2012 he was dismissed for a reason related to his HIV status and that his dismissal was automatically unfair in terms of section 187(1)(f) of the LRA.  He also claimed that he was unfairly discriminated against because of his HIV status in terms of section 6 of the EEA.  In considering the law Everett AJ mentioned the two claims were  related but different claims arising from the same set of facts.  The employer’s polices and practices were examined to see if any distinction, exclusion or preference was made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, ‘which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’.  given the facts and the evidence the Labour Court decided that the applicant failed to prove that he was ‘dismissed’ and that he had not been discriminated against.