It can take as long as three years for sacked employees living with HIV or AIDs to resolve their cases in Botswana’s industrial courts.
 
By that time they may have died, says Annah Mathiba, a judge in the Industrial Court of Botswana in the capital, Gaborone.

Since attending an ILO course on gender equality in the workplace, Mathiba has begun looking at ways to prioritise cases involving employees living with HIV or AIDs.

“When I came back from the course, what I had in mind was putting forward a proposal that would give them priority, given the fact that after hearing a case for three years, the chances are that the person might not be there.”

Mathiba was one of 25 African judges from Botswana, Malawi, Nigeria, South Africa and Zambia, who attended the week-long course at the ILO’s training centre in Turin, Italy, organized by the ILO’s Bureau for Gender Equality.

The aim was to provide court professionals with the knowledge they need of international labour law, so they can apply it when dealing with gender issues in their courts. HIV and AIDs – which affect women disproportionately – was a component of the course and is the subject of an ILO recommendation.

“I have had cases where an employee goes to the workplace one morning and says she wants to go to the doctor,” explains Mathiba. “The boss insists on getting a medical report, sees her HIV status and seizes every opportunity to threaten the employee. In other cases, employees are forced to undergo HIV tests. If an employee refuses, they are dismissed. “

In many cases, the discrimination is not so overt, making it all the more difficult to apply international labour law standards.

The full force of the law

“There were times when the law was not clear to me. There were times when I blindly applied international labour standards without having the full knowledge of where I got the authority from,” Mathiba adds.

Now she is back at her post. She says she can approach her cases with the full weight of international labour standards behind her, particularly those relating to domestic workers and to employees living with HIV and AIDs.  

“The course exposed me to international labour standards that I had little knowledge of previously. In particular the HIV and Aids Recommendation 200 which is still new, and we have never applied it in judgements through ignorance. Now that I know, it’s easier for me to make judgements and find support from international legal instruments.”

Jane Hodges, who heads the ILO’s Bureau for Gender Equality, says that the fight against discrimination is a central aspect of the ILO’s campaign for “Decent Work”.

“It is vitally important that the law, and how the courts interpret the law, are attentive to the promotion of gender equality in the workplace. It is the cornerstone upon which all of the ILO’s work to promote equality between working women and men is built.”

“Without good, gender-sensitive laws, and good, gender-sensitive interpretation of those laws by courts, there can be no real progress in equality between women and men,” she added.

The legal vs. the real world

But the realities of the legal and the real worlds do not always coincide. Benedict Kanyip, the Presiding Judge at the Industrial Court of Nigeria in Lagos, rarely sees sex discrimination cases in his courtroom. Not because it does not happen in Nigerian workplaces. In fact, he has heard of some blatant cases of discrimination.

The problem is, he says, most employees are reluctant to bring claims to court.

“The handicap that we have is that unless a case is filed, there is little that judges can do. Gender equality is an issue but the problem has a cultural association. There is a stigma about complaining of sexual harassment in the workplace. They don’t go to court to complain.”

Kanyip says he has the tools, the legal instruments, to back his judgements but, he explains: “The tools are useless to us if women and men don’t file the cases.”

“People have to be courageous to go to court. Even if you are making people aware of their rights, it doesn’t end there. They know when something wrong is being done to them but the courage to go to court is what’s lacking.”