20 Mar Case Analysis: HIV/AIDS Discrimination in the workplace
Case Analysis – Onuhikemi v Smridu Nigeria Ltd
Date of Judgment: July 15, 2016
Court: National Industrial Court of Nigeria – Lagos Division
F.O Abass with F.M Sarumoh for Applicant
Ifeomah C. Odo (Mrs) for Respondent
Facts of the Case
The applicant in this case – Mr Emmanuel Onuhikemi was employed as a kitchen assistant by Smridu Nigeria Ltd (Smridu), and deployed to the canteen of FrislandCampina WAMCO Nigeria Ltd. His duties entailed preparing meals and ensuring the smooth running of the canteen. It was a practice of Smridu to conduct mandatory routine medical tests on the employees to determine if any of them had any diseases (including HIV). Mr Onuhikemi worked with Smridu from 2011 to 2015, and in that period, he underwent 9 HIV tests, the last of which was carried out in March 2015, and where he was discovered to be HIV positive.
Once it was discovered he was HIV positive, he was told by his line manager to ‘go home and take care of himself and never return to the office’.
Mr Onuhikemi through his lawyer – Mr Faruq Abass, sued Smridu alleging his termination was due to the fact that he was discovered to be HIV positive, which amounted to a breach of his constitutional rights to freedom from discrimination and freedom from inhuman treatment, and asked for general damages in the amount of N2million (Two million naira) and aggravated damages in the amount of N2million (Two million naira)
Judgment of the Court
The courts held that the respondent had a policy of subjecting its employees to undergo compulsory HIV testing on a regular basis, which is unlawful by virtue of the provisions of the Lagos State Protection of Persons Living with HIV and Affected by AIDS Law 2007, this is also in violation of the right to human dignity as contained in Section 34(1) of the 1999 Constitution, and Articles 2,5 and 19 of the African Charter on Human and Peoples’ Rights.
By asking the employee to ‘go home and take care of himself and never return to the office’, the employer stigmatised and discriminated against the employee on the basis of his HIV status, and although there is no definition of workplace discrimination in the Nigerian Labour jurisprudence, the court is empowered by Section 254C-(2) of the 1999 Constitution as amended to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. Therefore, the court adopted the definition of discrimination in Article 1 of the International Labour Organisation Discrimination (Employment and Occupation) Convention No 111 which has been ratified.
The court awarded judgment in favour of the applicant and awarded him 2 years’ salary in the sum of N739,200 (Seven Hundred and Thirty-Nine Thousand Two Hundred Naira) as general damages, and N30,800 which amounts to one month salary in lieu of notice, and the award of costs of N100,000.
This case is an important case for a few reasons:
- The judgment states categorically that mandatory HIV testing by employers is a violation of the rights of Nigerian employees.
- The judgment states that any purported dismissal based on the HIV status of an employee is discriminatory and against the Lagos AIDS Law, the 1999 Constitution, and the African Charter on Human and Peoples’ Rights.
- The judgment also cited with approval the position taken in Maiya v Incorporated Trustees Clinton Health Access Initiative & Ors which is basically that the National Industrial Court (NIC) is empowered by Section 254C(2) of the 1999 Constitution to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. What this means is that once there is a discriminatory or unfair employment practice which is not provided for under Nigerian legislation, the NIC can have recourse to international conventions which have been ratified by the Nigerian Government.
You may read the full text of the judgment: Onuikhemi v. Smiridu Nig Ltd-Judgment.
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