Discriminatory dismissal of an HIV positive employee

An employee worked a merchant sailor. Following company instructions the employee went for a blood test and an HIV test is alleged to have been carried out without his consent.

Later the employer notified the employee of his dismissal alleging a just cause. The employee filed a lawsuit for dismissal without cause and claimed damages based on the Law of Employment Contract. On March 30, 1995, Tribunal III of the Labour Court of Appeals heard the employee's complaint and ordered the company to pay damages for dismissal without just cause.

The employee filed another lawsuit against his employer, the Argentine Naval Prefecture ( Prefectura Naval Argentina ), and against the blood test clinic for damages caused by his discriminatory dismissal.

The trial court established the employer's liability and ordered payment of damages caused to the plaintiff as a result of his dismissal. Nevertheless, the judge found that the Argentine Naval Prefecture and the blood test clinic had acted within the bounds of a legitimate exercise of their duties, and consequently rejected the claim in relation to these two defendants.

On July 17, 2003, Tribunal III of the Federal Court of Appeals in Civil and Commercial Matters affirmed the decision of first instance and increased damages to AR$ 180,000 including moral damage.

The Tribunal III's decision took into account the purpose of the AIDS' Law.

Tribunal III mentions a decision by the Supreme Court [ B.R.E. vs. Policía Federal Argentina (Federal Police Department) ] that held that any restriction or limitation to the right to work where the consequences of infection by the HIV virus do not specifically affect the employee's capabilities, or where all other possible work assignments in correspondence with the agent's capabilities are not explored, or the health of third parties is not in jeopardy, constitutes discriminatory behaviour that the legal order must prevent by applying the suitable means.

Based on this precedent, Tribunal III interprets that on the basis of a basic principle of social solidarity, the company should have shown an attitude of collaboration. In fact, the opposite occurred; not only did the company not offer the employee the possibility of performing other tasks, but it actually discharged him without a legal cause.

In relation to the employee's prior consent to having a blood test to detect the HIV virus, Tribunal III concurs with the aforementioned ruling by the Supreme Court that interpreted Law No 23,798 as declaring the struggle against AIDS of national interest. However the prevailing aim of the legislator has not been so much the protection of the personal right to intimacy as the protection of public health; therefore, the enumeration that the law establishes in relation to mandatory detection of the virus where a person's consent is not needed is not categorical. Therefore in some other circumstances, as in this case, the HIV test may be carried out without the consent of the affected person.

In consequence, Tribunal III interpreted that the attitude taken by the employer in relation to the HIV test to which the plaintiff was subjected does not prove to be illegal, as the employee worked in a closed community and which was one of the requirements established by the existing law.