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HIV positive SriLankan steward loses Supreme Court battle to retain job
View(s):A SriLankan Airlines steward identifying himself as ‘Citizen X’ who kept his HIV status undisclosed lost his bid to retain his employment as a cabin crew member.
The Supreme Court this week dismissed a Fundamental Rights petition filed by him on the basis that despite knowing he was an HIV (Human Immunodeficiency Virus) positive person from 2013, he had not disclosed that he had a sexually transmitted disease when he applied for a transfer from Mihin Lanka to Sri Lankan Airlines in 2016 when the former airline wound up.
Justice Sisira J. De Abrew with Justices Priyantha Jayawardena and Nalin Perera concurring in his judgment, held that SriLankan Airlines Ltd and its Group Medical Officer Dr Anoma Jayasinghe had not violated the fundamental rights of the petitioner.
Citizen X had filed his FR application through Attorney-at-Law Kamani Madhya Jinadasa.
Sri Lankan Airlines, its Group Medical Officer Dr Anoma Jayasinghe, Transport & Civil Aviation Ministry Secretary Nihal Somaweera, National STD/AIDS Control Programme Director Dr Sisira Liyanage and the Attorney General had been cited as respondents in the petition.
In its judgment, the SC held that SriLankan Airlines initially wanted to transfer Citizen ‘X’ as a Ground/Flight Attendant for two months beginning from November 1, 2016 to December 31, 2016, subject to terms and conditions stated in the second agreement entered into by SriLankan Airlines Ltd with Mihin Lanka Ltd. However, the respondents had failed to produce the second agreement along with their pleadings.
Counsel for the first and second respondents had submitted that when Citizen X filled up the medical form at the medical centre of the first respondent, he had declared in the said medical form that he did not have any sexually transmitted disease.
The counsel had further submitted that after the medical test of Citizen X, the first respondent had become aware that Citizen X was an HIV positive person–that information furnished by him in the medical form to the effect that he did not have a sexually transmitted disease proved to be false, and that the first respondent withdrew the contract of employment to Citizen X on the basis that he had provided false and dishonest information.
The petition was filed seeking an order from the SC to reinstate Citizen X as a cabin crew member of SriLankan Airlines as his employment had been terminated after it was found that he was HIV-positive. The SC held that the petitioner had failed to prove the allegation that SriLankan Airlines did not offer him employment based on his status as a person living with HIV.
The Court pointed out that the petitioner had become aware of his HIV positive status in 2013. However, while filling out the medical form for the post of cabin crew member for SriLankan Airlines on October 10, 2016, the petitioner had made a false declaration that he did not have any sexually transmitted disease.
Counsel for the petitioner had contended that in terms of ‘National Policy of HIV and AIDS in the World of Work in Sri Lanka,’ it was wrong for the first respondent to request Citizen X to face a medical test including HIV test since Citizen X is an HIV positive person.
The court, though, observed that the first respondent could not be found fault with for subjecting Citizen X to the above medical test as the first respondent was unaware that Citizen X was HIV positive. Before the medical test Citizen X’s HIV status was known only to him.
Court observed that Citizen X, who knew he was HIV positive back in 2013, did not disclose his HIV positive status at least in a confidential manner. But, after the medical test discovered him to be HIV positive, Citizen X wanted protection provided in the ‘National Policy of HIV and AIDS in the World of Work in Sri Lanka.’
Justice Sisira J De Abrew, in his judgment, observed that Citizen X is “blowing hot and cold.” Such a person is not entitled to get relief from court, he held. By making a false declaration in the medical form that he did not have a sexually transmitted disease, Citizen X had breached the trust that an employee should keep with the employer, the court held.
“I further hold that the petitioner has failed to prove the allegation that the 1st respondent terminated the services of the Citizen X or the 1st respondent did not give him employment on the basis that he (Citizen X) was a HIV positive person,” Justic De Abrew has stated in his judgement.
Senany Dayaratne with T. Weragoda appeared for the petitioner. S. A. Parathalingam, PC with Nishkan Parathalingam appeared for Sri Lankan Airlines and its Group Medical Officer Dr Anoma Jayasinghe. Additional Solicitor General Sanjay Rajaratnam appeared for Secretary to the Ministry of Transport & Civil Aviation and the Attorney General.