Backdating an employment contract

It must be pointed out immediately that the assertions by SAA were inconsistent with the medical evidence that was proffered in their support.

SAA’s medical expert, Professor Barry David Schoub, in an affidavit, told the High Court that only those persons whose HIV infection had reached the immunosuppression stage and whose CD4 count had dropped below 300 cells per microlitre of blood were prone to the medical, safety and operational hazards asserted.

At the end of the selection process, the appellant, together with eleven others, was found to be a suitable candidate for employment.

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There is a risk, therefore, that they may contract these diseases and transmit them to others.

If they are ill with these opportunistic diseases, they will not be able to perform the emergency and safety procedures that they are required to perform in the course of their duties as cabin attendants.

If they do not take it, however, they run the risk not only of contracting yellow fever, but also of transmitting it to others, including passengers.

It added that people who are HIV positive are also prone to contracting opportunistic diseases.

This appeal concerns the constitutionality of South African Airways’ (SAA) practice of refusing to employ as cabin attendants people who are living with the Human Immunodeficiency Virus (HIV).

Two questions fall to be answered: first, is such a practice inconsistent with any provision of the Bill of Rights; and second, if so, what is the appropriate relief in this case? He was refused employment as a cabin attendant by SAA because of his HIV positive status.

A further factor that it took into consideration was the allegation by SAA that its competitors apply a similar employment policy.

The court reasoned that if SAA were obliged to employ people with HIV, it “would be seriously disadvantaged as against its competitors”.

sought, and was granted, leave to be admitted as an amicus curiae in support of the appeal.

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