In two recent cases, the Brazilian Federal Superiour Labour Tribunal has found in favour of an HIV-positive worker, ruling that the workers had been unfairly dismissed and ordering that they be reinstated and compensated for lost wages and benefits:
- Adriana Ricardo da Rosa contra Sociedade de Ônibus Porto Alegrense Ltda. – SOPAL (Case No. TST-RR-104900-64.2002.5.04.0022, issued 3 August 2011) and
- Edson Osório Leites contra SOGAL – Sociedade de Ônibus Gaúcha Ltda (Case No. TST-RR-61600-92.2005.5.04.0201, issued 22 June 2011).
The complainants in both cases argued that their dismissals were due to their HIV-positive status, that the employers’ actions were discriminatory and violated their fundamental rights under the Brazilian Constitution. Both complainants sought reinstatement and payment of retroactive salaries and all correspondent benefits lost as a result of the dismissals.
In both cases, the Brazilian Federal Superior Labour Tribunal found in favour of the HIV-positive worker, ruling that they had been discriminated against and unfairly dismissed on the basis of their HIV status.
In the decisions, the Tribunal referred to two ILO international labour standards: the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Recommendation concerning HIV and AIDS and the World of Work, 2010 (No. 200). The Tribunal observed in both cases that Recommendation No. 200 prohibits discrimination against HIV-positive workers and provides that member States should ensure that workers not be discriminated against or stigmatized because of their real or perceived HIV-status.
The Tribunal referred in both cases to paragraphs 10 and 11 of Recommendation No. 200, which provide that real or perceived HIV status should not be a ground of discrimination preventing recruitment or continued employment and that it should not be a cause for termination of employment. The Tribunal decision also emphasized that Recommendation No. 200 calls for ILO member States to promote the retention in work and recruitment of persons living with HIV.
Examining the issue of burden of proof in the two cases, the Tribunal determined that the respondent employer (not the complainant) had the duty of proving that the dismissal was not due to the complainant’s HIV status.