HIV-positive Kenyan Waitress Receives Compensation for Unfair Dismissal

by Gopalan on  July 14, 2008 at 10:52 AM AIDS/HIV News   - G J E 4
 HIV-positive Kenyan Waitress Receives Compensation for Unfair Dismissal
A HIV-positive Kenyan woman is to receive $35,000 as compensation from her employer for unfair dismissal.

A High Court ruled that it was unlawful to end employment on the grounds of a person's HIV status. The decision is the first such ruling in Kenya and is hailed as a victory for HIV campaigners.

About 2.5m out of 32m Kenyans are currently living with HIV/Aids.

Jacqueline Adhiambo Ongur, a 45-year-old waitress, also sued her doctor for revealing her HIV status without her consent. But none of the defendants admitted liability.

Mrs Ongur's former employer, Home Park Caterers, said the company had not requested a medical test, and was not aware of her status when she was sacked.

But the former waitress told the court that her letter of termination said she had been sacked on medical grounds, and for being unable to perform her duties.

Mrs Ongur says she filed the case to focus attention on the rights of people living with HIV/Aids.

She says she has endured hardship since she was sacked and has not been able to get another job.

Her lawyer said the case had been very challenging as Kenya's constitution does not expressly prohibit discrimination on grounds of HIV.

HIV/Aids activists have lauded the ruling saying it is a victory in the fight for the rights of people living with HIV/Aids.

"It's a lesson and a message to employers that people living with HIV and Aids have got rights like any other person to work," activist Inviolata Mbwavi told the BBC's Focus on Africa programme.

"It will bring up many people who have suffered at the hands of their insensitive employers to come out and know that the law protects them."

People living with the virus still face immense stigmatisation, Ms Mbwavi said.

Mrs Ongur told the court that when she went to hospital complaining of chest pains and rashes, Dr Primus Ochieng tested her for HIV without her consent.

She told the court that Dr Ochieng and the Metropolitan Hospital then disclosed her status without her consent to her employer, in breach of doctor-patient confidentiality.

The court declared that testing employees or prospective employees for HIV without consent constituted an invasion of privacy and was unlawful.

Disclosing an employee's status to their employer without their consent was also unlawful, the court ruled.

The former waitress said her employer and colleagues knew about her HIV status before she did.

She said that she only found out it when she went back to the hospital and requested her medical report.

Mrs Ongur had worked for Home Park Caterers for eight years before she was dismissed.

Source: Medindia

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I believe that the rights of the many need to be put ahead of the rights of the individual. As such, certain industries such as, especially, food production, restaurants, child care/education and health, must be protected /exempt from such excessively liberal and politically correct regulations and decisions that put the lives of many at risk.
Regardless of how the infected people got infected and how unfair life was to them, it is ridiculous to allow them to risk infecting other people, just because of their human rights to work and to fair treatment. Fair should be taken in the context of the environment where these people operate and the risks they could pose to the other people. A tiger may be protected while in the jungle or on a reservation but when running amok in a village, about to kill people, it needs to be captured and removed immediately or, as a last resort it may need to be shot.
In "industries" like the ones above, where there is an increased risk of diseases such as Hepatitis, HIV and other infectious diseases being transmitted to customers or patients, through a more direct contact and contact with utensils that the patients or customers will be in intimate contact with (in their mouths or in their bodies, i.e. through open wounds) should be OBLIGED, leave alone ALLOWED to protect the people they serve against SEVERE health risks from the people they may employ.
If carriers/infected people do not have the moral strength and do not feel they must avoid risks of infecting other people, then why should society not be allowed to protect itself and its members against the risk?
We are experiencing a massive epidemic and if only it were possible, we should have Quarantine not ultra liberal employment gestures reeking of political correctness pushed to the limits.
People who present risks should be encouraged (at first and forced if needed) to move away from environments in which they present increased risks of passing the disease on and move towards plenty of other areas where the risks to the healthy population are far lower.
As such, while I am sorry about the suffering of the plaintiff and my heart goes out to her, I deplore the court’s ruling in her favour and the precedent it has created and my heart also goes out to all those who will be infected by irresponsible people who are infected and still work (protected by laws) in sectors where they should not be working

guest Thursday, October 9, 2008

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