In KAB v National Union of Metalworkers of SA (2023) ILJ 2554 (FSB), the Plaintiff, an employee of the one Defendant, instituted a defamation claim against the employer and two of her colleagues for disclosing her HIV status during a staff meeting. The Plaintiff’s claim against the Defendants was for R1 000 000.00 (one million rand) for violating her privacy, dignity, and reputation. The employee had the option to refer a discrimination dispute to the CCMA but elected to institute a claim for damages against the employer and two of her colleagues.
The Court had to determine whether the disclosure of the employee’s HIV status in the workplace would be considered defamatory. In establishing this, the Court had to consider the element of defamation, as stated in Le Roux and Others v Dey 2011 (3) SA 274 (CC), as the wrongful and intentional publication of a defamatory statement concerning the affected employee. The Court further had to determine the likelihood of the injury to the reputation or good name of the Plaintiff. A subjective test was applied to establish if the Plaintiff’s dignity had been impaired. The Plaintiff had disclosed her HIV status to the third Defendant in confidence, and it was her case that she did not expect the second Defendant to disclose it during a staff meeting with fourteen (14) other colleagues in attendance that she was HIV positive. As a result of the disclosure during the meeting, the Plaintiff felt that her dignity was impaired because the second Defendant laughed when he walked out of the meeting. The second Defendant contended that he apologised to the Plaintiff, and he used the example in the meeting to show the employees how confidentiality works, which was to the detriment of the Defendant.
The Court concluded that the disclosure of the Plaintiff’s HIV status by the second Defendant should be regarded as public defaming of the Plaintiff’s privacy, dignity, and reputation of her name. The second Defendant should not have disclosed such sensitive information about the Plaintiff’s health without her consent. Despite the apology of the second Defendant, the Court found that the damage had already been done and awarded R100 000.00 (one hundred thousand rand) in damages to the Plaintiff.
This judgment highlights the importance of maintaining confidentiality regarding an employee’s medical condition. It also stresses that such conditions should not be used as examples to demonstrate how confidential information should be handled. Although the judgement regards the defamation of character, the employee also has the option to refer a dispute to the CCMA for discrimination. Section 6(1) of the Employment Equality Act (EEA) determines that: “No person may unfairly discriminate directly or indirectly against an employee, in any employment policy or practice on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on other arbitrary ground.”
Employers must ensure that their employees understand the importance of maintaining confidentiality as it may consequently cause vicarious liability for both the employer and the discriminating employee. Should an employee voluntarily disclose their HIV status to the employer or other employees, the disclosed information may not be disclosed to others without the written consent of the employee. Further measures can be taken in the workplace to support and accept employees who voluntarily disclose their HIV status without prejudicing their human dignity.
Article By Christie de Villiers
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)