Trade Unions and HIV/AIDS

The World Conference on Social Determinants of Health, Rio de Janeiro, Brazil, takes place between 19 - 21 October.

Trade union HIV/AIDS programs were born out of the recognition that social justice is a matter of life and death, socio-economic policies are determinants to health and that at the same time health determines equality and development (individual and collective). The conference’s outcome document, the Rio Declaration, will help to build high-level international backing for the further development and implementation of national policies to address social determinants of health. It can provide with more argument to support the trade union position on HIV/AIDS and other MDGs, including the work on the implementation of the ILO HIV and AIDS Recommendation no. 200 (2010) at the global as well as at the national level.

The conference will be attended by ministers of health, foreign affairs, the environment and other sectors; representatives of international agencies, philanthropic institutions and civil society organizations; leading academics and technical experts; and representatives from the private sector.

Website of the Conference: http://www.who.int/sdhconference/en/index.html

WHO webpage on social determinants of health:http://www.who.int/social_determinants/en/

The Commission’s final report was launched in August 2008, and contained three overarching recommendations: 1. Improve daily living conditions 2. Tackle the inequitable distribution of power, money, and resources 3. Measure and understand the problem and assess the impact of action

More information on the recommendations can be found here: http://www.who.int/social_determinants/thecommission/finalreport/closethegap_how/en/index.html

The 2008 Report can be found here: http://www.who.int/social_determinants/thecommission/finalreport/en/index.html

The program of the Conference can be found here: http://www.who.int/sdhconference/programme/programme.pdf

The website of the Forum is available here: http://mdg6forum.org/en/index.phtml

The Joint Statement on behalf of the International Co-chairs MDG 6 Forum (UNAIDS, WB, GFATM) can be found here: http://www.unaids.org/en/media/unaids/contentassets/documents/document/2011/10/20111011_Joint_Statement_MDG6_en.pdf

Civil Society Sessions of the International Forum on MDG6 10th – 12th October, 2011, Moscow Russia

See the Conference Report on Civil Sociery Session of the Forum: "Delivering the MDGs to 2015 and Beyond: The pivotal role of the G20, BRICS, and emerging powers".

The report has been prepared by Kel Currah from What World.

Delivering the MDGs to 2015 and Beyond: The pivotal role of the G20, BRICS, and emerging powers.

I) Introduction In October, the Russian government, in partnership with the World Bank. UNAIDS, and the Global Fund for HIV/AIDS, TB and Malaria convened an International Forum on MDG 6 to discuss the measures needed to meet the MDGs globally as well as in Eastern Europe and the Caucuses. As part of the International Forum, the Russian government supported the Civil Society Sessions and commissioned the NGO, Infoshare Russia to help coordinate and organize the meeting.

The Civil Society Sessions were attended by leading practitioners and policy specialists from INGOs, civil society organizations, think tanks and coalitions and debated the role of the G20 and BRICS in delivering the MDGs and setting the post-2015 agenda. The group met in two sessions over two days, as well as in informal side-meetings.

The main purpose of the Civil Society meetings was to gain an understanding of the politics of the G20 in relation to meeting the MDGs and delivering a post-2015 agenda particularly in the BRICS; debate policy issues and stances related to the MDGs and G20; and share information and explore forthcoming opportunities for collaboration or joint initiatives around the G20 and post-2015 agenda. In addition to the Civil Society sessions, a small group of international and Russian NGOs would meet in private with the Russian G8 & G20 Sherpa to address pressing G20 issues.

The discussions in Moscow were dynamic, lively and focused. The emphasis on the the role of the G20 and BRICS countries in the work to meet the MDGs created a unique opportunity for international and Russian NGOs to engage and debate this critical issue. This conference report sets out the background issues and summarizes the main areas of agreement and those that proved controversial.

II) Context: The next four years is a critical time for the sustainable development community: the MDGs must be achieved by 2015 and a new development framework must be negotiated and agreed in a much more complex and diverse political setting and a challenging economic context. Campaigning and advocating for the current MDGs and their eventual successor needs a full understanding of the global political situation, the new actors and new international groupings such as the G20 leaders group as well as a whole new set of tactics and strategies.

The role of the Brazil, Russia, India, China and Mexico is critical in the MDG debate. The geopolitical and economic changes over the past four years have affected the international power structure, destroying the business-as-usual model. The role of Russia is particularly key as it both bridges the emerging forums (BRICS, G20, G8, ASEAN) and Russia will be chairing APEC in 2012, as well as the G8 in 2014 and most likely the G20 in 2013.

Therefore, the International MDG6 Forum and the accompanying Civil Society Sessions is an excellent occasion for those advocating on the G20, MDGs and sustainable development to debate and discuss these critical issues, to gain an understanding of the politics around the current set of MDGs and their replacement and engage with Russian and international civil society to explore advocacy opportunities and debate possible strategies for ensuring the MDGs, and sustainable development are at the top o

III) Civil Society Sessions: Debates and Discussions The two sessions say lively and engaged debate between the participating NGOs. The debate amongst the participants focused on the following topics.

The Rise and rise of the G20 The International Forum heard from specialists in G8 & G20 advocacy on the changing geo-political landscape as the power is shifting from the G8 countries to the newly empowered G20. In addition, the development map is also evolving with 50% of poor people now living in middle income countries such as India and China. Concerns were raised about the global gap on critical issues such as health, education and social welfare issues that the G8 were no longer addressing but the G20 proved reluctant to tackle. The G20 development agenda is instead focusing on the economic factors influencing development, such as infrastructure, professional training and the like. The only true development issue on the agenda is food security.

So the questions was posed asking what is the vehicle to deliver coordinated development policy and interventions in the global community. How to put the MDGs on the G20 agenda and position them with the BRICS?

Politics of the MDGs within the BRICS

The meeting heard about the new Russian development agency which will oversee bilateral aid. The idea of a Russian development agency itself led to energized discussion on the challenges faced by the emerging countries as they move from recipient country to donor country. There was some frustration that the new agency would be developing HIV/AIDS, TB and malaria strategies when the domestic strategies to tackle these diseases was not clear. A number of participants also questioned the merit of a country like Russia allocating scant resources to other countries when there is much to do in its own country - an issue that is prominent as the shift takes place. Indeed, there was a vocal line of argument in the meeting that felt a BRIC country like Russia should focus on its internal issues before becoming an international donor.

The debate also looked at the role of the G20 and its place in development and meeting the MDGs. There was a divide in the group as to the merit of the G20 playing such a role. Many attending the Forum felt the G20 was not that critical to the key issues facing practioneers on the ground and, therefore, were ambivalent about putting any capacity and effort into campaigning and lobbying on the G20 on the MDGs and the development agenda in general.

The meeting explored the potential of the G20 in promoting best practices within members to showcase how effective the various global instruments can be when implemented effectively. This was one possible route for the G20 to take in the development field.

Questions were also raised in how to ensure monies spent in BRIC countries, including Russia, are used effectively and how to reduce corruption in development projects. These issues were the most prominent and there was no agreed outcome on how the G20 could address these issues, which must be tackled if the MDGs were to be achieved by 2015.

Civil Society campaigning The role of civil society campaigning was discussed with examples from the Millennium Development Campaign and the Global Stand Up Against Poverty which mobilized 173 million people through ‘Stand-up’ in 2009. Panel speakers stressed that these people movements were having an impact on the global approach to development, but needed to be embedded in G20 campaigning. The prevalence of domestic issues since the 2008 financial crisis, in rich and as well as emerging countries, had made global campaigning more difficult. So civil society needed to work on how to connect these pressing domestic issues with the global governance and decision-making processes like the G20.

The campaigning and advocacy experience of French NGOs was shared with the group, with the ways and means of combining people mobilization, media work and detailed policy work, to put pressure on the host government of the G8 or G20 to deliver concrete outcomes from Summits. The participants discussed how campaigning had to be contextualized to each national situation as some tactics worked better than others depending on the make-up of the government.

G20 Leadership The importance of coordination and leadership of host civil society groups was put forward as a critical part of pushing the G20 president leadership to put issues on the agenda and set an ambitious agenda. The role of civil society in the host country as the leaders of global civil society during their presidency year was stressed as an important part of global campaigning to support the MDGs.

Post-2015 Concepts and Policy On the second day of the International Forum, the Civil Society Sessions looked at the future of the MDGs and the post-2015 development agenda. Participants heard that the initial discussions amongst MDG focused groups raised four key concepts that must be embedded in any future framework: gender, human rights, the environment and inequality. Already, some four years away from the 2015 MDG deadline, there were possible proposals for the post-2015 agenda. These included the Happiness Index, a proposal put forward by the Bhutanses government and endorsed by Jeffery Sachs, the UN Secretary General’s Special Advisor on the MDGs. This proposal looks at people’s well-being using a large number of indicators to determine the level of happiness, or well-being, of a country. Another recent proposal included Millennium Consumption Goals that gave indicators to northern and southern countries on the use of water, carbon emissions and the rate of consumption – to help reduce it in rich countries and make basic resources available in poorer countries. A collaboration between the Centre of International Governance Innovation (CIGI) and the International Federation of Red Crosses and Red Crescents have drawn up a proposal that has 12 goals ranging from food to inter-connectedness. Other proposals include putting human rights at the core of the MDGs and using the existing human rights monitoring mechanisms to ensure accountability.

The Transitioning role of BRICS countries The Sessions then heard from Russian experts on the key issues that BRIC countries need to address as the transition from recipient countries to donor countries. These included investing in new institutions such as research and development centers to inform decision-making and engaging international experts to help track the new development work. The speaker underlined the importance of creating synergies with existing international groupings such as the G8. In addition, BRIC countries like Russia must develop national strategies to guide their international work to ensure consistency and legislative support in carrying out their work. All this must be accompanied by transparency and accountability mechanisms to build trust. These mechanisms should involve civil society actors. Finally, BRIC countries must also invest in domestic programmes to address poverty as well as look beyond the programmes to address the structural problems that perpetuate the problems.

The participants discussed the role of the BRICS in adjusting to becoming donors and strongly cautioned the BRICS like Russia to ensure there is consistency, for example, turning down external support for key development programmes was short-sighted and could jeopardize the countries from reaching their own targets for development.

The Processes for Agreeing the Post-2015 Agenda The Sessions heard from campaigners working on the post-2015 agenda who shared their learnings from the MDGs. Key issues included:
  The first set of MDGs were devised by a small closed group and the new agenda must be agreed in an open and transparent process
  The MDGs have specific targets for developing countries but no specific targets for developed countries (goal 8). This must be addressed

The participants heard that the process for the post-2015 agenda was not clear a the moment but key dates included early 2012 when the UN SG was expected to announce a global panel to guide the process; mid to late 2012 when a number of organizations were expected to begin consultations; the MDG Summit planned for 2013; and the start of formal negotiations on the new framework expected in late 2014 or early 2015.

Another speaker emphasized the importance of strengthening the engagement between civil society and the political processes – governments and multilateral insitutions. It was critical to ensure the voices from the communities were heard in the corridors of power and it was up to civil society to ensure the post-2015 framework actually delivered on its goals and commitments to the poor.

As for the consultations, there was not the time to set up a separate process, and there is not the capacity to do so, as a result, the consultation process would have to be included alongside the existing gatherings and meetings of civil society at the national, regional and global levels.

Participants pointed out that the concept of civil society need proper defining. All too often governments ‘consulted’ with the same group of NGOs, and only a small handful of groups were able to engage the government. It was critical that civil society included smaller organizations and those more remote from the capitals.

IV) Next Steps for Future Work The conference was as much focused on practical outcomes of the meeting as the debates and discussions themselves. The groups agreed that the key issue was to build coordination on the national level while increasing engagement at the global level between civil society and between civil society and the G20 governments.

Next Steps

1) National coordination As the recommendations to the Russian G8/G20 Sherpa point out, the Russian government will be chair of the G20 in 2013 which is a key year for the future of the MDGs post-2015. Therefore, it is critical that the Russian civil society create a wide and inclusive civil society platform and agree the main components of a policy platform for the G20 in 2013 along with ways of working and a strategy for engaging G20 governments in a coordinated fashion in the lead-up to the 2013 Summit. It is critical that this platform includes groups outside Moscow.

2) International Russian G20 Coordination Meeting in 2012 The Russian platform should organize along with Mexican G20 civil society platform and the Global G8 & G20 Working Group, a coordination side-meeting to take place either at the international civil society forum in Mexico in early 2012 or at the G20 Summit in June 2012. The Russian civil society organizations should present their platform, policy initiatives and the proposed strategy for international civil society to discuss. The planning meeting should produce a joint strategy for campaigning on the MDGs in the G20 for 2013.

3) 2013 Civil G20 The Russian civil society group should work to lobbying the Russian government to host a G20 Civil Society meeting sometime in early 2013. This would build on Russia’s pioneering work in 2006 when it created the Civil G8 and be an opportunity to press the G20 sherpas on the global civil society agenda. Specific attention should be placed on creating a truly influential and informative engagement with the Sherpas.

4) Post-MDG Process The discussions on the post-2015 agenda agreed that it was important the information on the process and consultations be circulated amongst global civil society as well as Russian civil society. The global secretariat of the Global Call to Action Against Poverty, along with the Beyond 2015 campaign, were tasked with keeping groups who expressed an interest in the process informed with up-dates on content; the processes; and forthcoming global, regional and national consultations on the post-2015 agenda. This will help civil society groups increase their understanding of the process so they can make informed contributions to the future post-2015 consultations that are expected to take place over the next three years.

Overseeing the Next Steps The organizers of the Civil Society Sessions, Infoshare, will oversee the implementation of this post-conference work to ensure there is momentum and outputs over the course of the project in full consultation with the Russian civil society community and in liaison with the Global G8 & G20 Working Group. It takes on the responsibility to report back the organizers of the International Forum on MDG6 as well as the groups that attended the conference.

V) Recommendations from the Civil Society Sessions to the Russian G8 & G20 Sherpa

The Civil Society Sessions of the International Forum on MDG 6 was an intense and productive debate between Russian and international civil society which agreed a set of recommendations to the G20 Sherpa on the issue of MDGs and the future presidency of the G20.

a) The civil society participants of the International Forum urge the G8 & G20 Sherpa ensure that any new development agency works with the explicit aim to reduce poverty and address inequalities in all its programmes and initiatives. In addition, the Russian government should ensure that any new development agency works with full transparency and complies with the highest global standards for programme evaluation and ODA quality and effectiveness.

b) Civil society at the Forum urges the Russian government as host of the G20, to put the future of the development framework post-2015 at the top of the G20 2013 agenda. 2013 is a key year in the formulation of the post-2015 framework which will need political leadership and buy-in – the G20 can be instrumental in marshalling the key countries to take an active and ambitious approach to the issue.

c) With specific regard to MDG 6, members of the civil society forum urged the G20 and the Global Fund for HIV/AIDS, Malaria and TB to specify a specific budget for Least Developed Countries (LCDs) to support their efforts to achieve MDG 6 as they are particularly affected by these infectious diseases.

d) It is critical that the G20 Sherpa work with the breadth of civil society in Russia and undertake consultations with Russian civil society organizations in the lead-up to assuming the G20 presidency, not only in Moscow, but leading regional consultations with civil society and development practioneers to understand the challenges facing NGOs in the Russian Federation and see how the G20 could practically support their work through innovative policy advances.

e) In addition to engaging with Russian civil society, the Civil Society Sessions recommends the Russian government replicate its excellent and pioneering global civil society engagement began in 2006. The Russian government should plan for an effective and engaging Civil G20 meeting to be held in Russian in 2013. The Civil Society Sessions recommend that the meeting be held alongside the a Sherpa meeting, but ideally not in Moscow or St Petersburg, but in the regions of Russia to help encourage strong, community based representation. Finally, the Russian president should undertake travel to countries most affected by the MDGs, such as low-income countries sometime in 2013 to help raise the issue in the global media prior to the Summit.

An international survey of people living with HIV in 2010 found that more than one third had experienced loss of employment, denial of health care, social or vocational exclusion and/or involuntary disclosure Clearly, more evidence gathering and research in this area is needed in order to inform human rights based responses to HIV/AIDS.

Trade union networks have a role to play in the monitoring of the relationship between HIV, Human Rights and legal responses, especially since the recent adoption of the ILO Recommendation no 200 on HIV and AIDS and the world of work http://www.ilo.org/aids/lang--en/docName--WCMS_142706/index.htm. The ILO Recommendation is currently the only existing international human rights standard on HIV and AIDS.

ITUC HIV/AIDS Program runs a recurrent mapping excercise on workplace related laws and policies that create barriers to HIV prevention, treatment, care and support. The review cosists of the following elements: Mapping of cases of workplace discrimination on grounds of real or perceived HIV status in your country. Examples may include:
  Cases of mandatory HIV testing in the workplace;
  Cases of unauthorised HIV disclosure in the workplace resulting in dismissal;
  Cases of denial of recruitment, training, promotion etc. on grounds of real or perceived HIV status;
  Other cases of workplace related discrimination on grounds of real or perceived HIV status.

Mapping of laws that allow for unfair HIV related discrimination in recruitment and employment Examples may include:
  Lack of specific legislation that prohibits communication of the results of HIV test by the medical doctor directly to the employer (eg. lack of data protection legislation)
  Legislation that specifically allows mandatory HIV testing for employment purposes (common examples include: civil service, health workers, armed and uniformed services, migrant workers).
  Other examples of laws that allow for unfair HIV related discrimination in recruitment and employment.

Contact: Zuzanna Muskat-Gorska, Global Trade Union HIV/AIDS Coordinator, zuzanna.gorska@ituc-csi.org, tel: +32 2 224 02 35.

National and regional courts take the ILO HIV and AIDS Recommendation on board in 2011

South Africa (February 2011)

source: Section27

On 16 February 2011 Judge Bhoola of the South African Labour Court handed down the judgement in the case of Gary Shane Allpass v Mooikloof Estates (Pty) Ltd.

The court declared Mr Allpass’s dismissal as automatically unfair in terms of section 187(1)(f) of the Labour Relations Act, 1995 (LRA). The employer was ordered to pay Mr Allpass compensation of twelve months’ remuneration “reflecting both restitution as well a punitive element for unfair discrimination on the grounds of his HIV status.” The employer was also ordered to pay all Mr Allpass’s legal costs

Mr Allpass has been living with HIV for almost twenty years. Before he was offered the position of a horse riding instructor and stable manager with effect from 1 November 2008, he was interviewed and asked about his state of health. He stated that he was in ‘good health’, which, in terms of medical evidence presented, was a true reflection of the situation.

Sometime in November 2008 the employer required Mr Allpass and two other employees (out of a staff of 30) to fill in a form that required them to disclose if they were on any chronic medication. Mr Allpass complied with the instruction and, amongst other things, listed the medicines that he takes daily to manage his HIV infection.

Judge Bhoola describes this form – which the employer claimed to be a standard administrative form – as “at the very least … an attempt to extract information about the applicant’s HIV status, and would therefore constitute unfair discrimination based on HIV.”

The disclosure of his HIV infection so infuriated Mr Allpass’s superior, Mr Dawie Malan, that he immediately terminated Mr Allpass’s employment. Without any medical justification, his subsequent letter of dismissal stated that the ground of dismissal was that Mr Allpass was “severely ill”. In the employer’s mind, being HIV positive – without anything more – renders one severely ill. With this in mind, the employer had expected Mr. Allpass to disclose his HIV status when asked in his interview for the job whether his general state of health was good.

Contrary to the views held by the respondents of Mr Allpass’ state of health, Judge Bhoola notes as ‘inescapable fact’ that Mr Allpass:

“had no medical or physical impediment preventing him from performing his duties…had acquitted himself well in a strenuous and demanding job. This renders spurious any notion that he was ‘severely ill’ and belies the true rationale for his dismissal. The notion that HIV is synonymous with serious illness is however not unheard of. It emanates from a general stereotype about all people living with HIV, and which results in loss of dignity and a sense of self”. (our emphasis)

Mr Allpass’ dismissal was not the end of his humiliation. As part of the terms of his contract of employment he lived on the Mooikloof Estate in the east of Pretoria where he worked. Several days after his unfair dismissal Mr Allpass was insulted and called a ‘moffie’ and vagrant’, manhandled and evicted by a security manager, even though he had no alternative accommodation at the time.

In this regard Judge Bhoola dismissed Allpass’ claim for R150,000 in damages arising from these events. This claim was not upheld, in large part because it took place after his dismissal and was carried out by a third party and not the respondents. Judge Bhoola accepted that “it must … be inferred from the circumstantial evidence that the instruction for his eviction must have emanated from the respondent and it should accordingly be held liable”, but found that there is not “a sufficient causal nexus on which the Malans can be held liable” and therefore “the only appropriate cause of action a civil claim in delict (damages).”

Challenging Stereotypes and Stigma

The judgment confirms that Mr Allpass was dismissed summarily after his former employer discovered that he has HIV.

It further reveals that the whole conduct of the employer was unfair in that there was no hearing or due process as required by law. His good health and ability to perform all his duties were considered irrelevant by the employer when the arbitrary and prejudicial decision to fire him was taken.

Particularly significant is the judges’ rejection of the employers’ attempt to hide HIV as the cause of the dismissal by claiming that the real reason was his allergy to penicillin which he was required to administer to horses as part of his job. Concocting lawful justifications appears to be a common practice by employers and one that must be fought.

But it did not succeed in this case. However, it does re-emphasise the problem of ongoing unfair discrimination, stigma and stereotyping of people with HIV. The attitudes that underpin stigma even crept into the court room. For example, during the conclusion of the hearing in December 2010 the respondents’ legal counsel directly accused Allpass of jumping on the “HIV bandwagon” in order to cover up the real reasons for his dismissal. In paragraphs 68 and 69, Judge Bhoola responded to this as follows:

“The respondent accused the applicant of ‘tactical opportunism’ in that he deliberately exploited his HIV status. It also challenged his credibility. It was put to him in cross-examination that he tended to overreact because of his HIV status, and his refusal to sign his final notice of dismissal was a manifestation of this conduct. The applicant had a valid explanation – he submitted that his refusal to sign the notice reflected his rejection of the allegation that he was dismissed for fraudulent misrepresentation and that any lay person faced with such a letter could be excused for believing that by signing he would be acquiescing with its contents as opposed to simply acknowledging receipt.

This accusation appears to emanate from a stereotype about homosexuals and people with HIV – it is akin to attributing to women the characteristics of being over-emotional or accusing all black people of being lazy. It is a manifestation of homophobia and it is sad that despite more than a decade of constitutional protection of privacy and anti-discrimination on these very grounds, our society is still seeped in these misconceptions that impact on the livelihood and dignity of human beings.” (Our emphasis)

European Court of Human Rights (March 2011)

European Court of Human Rights holds that refusal of a residence permit to a foreigner on the basis of his HIV-positive status was discriminatory

In its decision of 10 March 2011 in Kiyutin v. Russia (Application No. 2700/10), the European Court of Human Rights held unanimously that the refusal of the Russian authorities to grant a residency permit to a national of Uzbekistan on the basis of his HIV-positive status was discriminatory.

Brazil (June 2011 and August 2011)

source: ILOAIDS website 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.