SC dismisses HIV-positive ex-SriLankan staffer's FR petition for reinstatement

The Supreme Court (SC) has dismissed a Fundamental Rights (FR) Petition filed by an individual who alleged he was denied employment as a Cabin Crew member by SriLankan Airlines, based on his Human Immunodeficiency Virus (HIV) status.

The Petitioner, identified as ‘Citizen X,’ had kept his HIV status undisclosed to the public.

Justice Sisira J. De Abrew with Justices Priyantha Jayawardena and Nalin Perera concurring, held that SriLankan Airlines Ltd and its Group Medical Officer (GMO) Dr Anoma Jayasinghe had not violated the Petitioner's FR.

Sri Lankan Airlines, its GMO Dr Anoma Jayasinghe, Transport & Civil Aviation Ministry Secretary Nihal Somaweera, National STD- AIDS Control Programme Director Dr Sisira Liyanage and the Attorney General (AG) had been cited as Respondents in the petition.

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 he was HIVpositive.

In its judgment, 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 HIVpositive 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 transmit- ted disease. Counsel for the Petitioner had contended that, in terms of ‘ National Policy of HIV & AIDS in the World of Work in Sri Lanka,’ it was wrong for the 1st Respondent to request Citizen X to face a medical test, including an HIV test, since Citizen X is an HIV-positive person.

The Court though, observed that the 1st Respondent could not be found fault with, for subjecting Citizen X to the above medical test, as the 1st 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 found him to be HIV-positive, Citizen X wants protection provided in the ‘National Policy of HIV & 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 further 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.

Senany Dayaratne with T. Weragoda appeared for the Petitioner.

S.A. Parathalingam, P.C. with Nishkan Parathalingam appeared for SriLankan Airlines and its GMO Dr Anoma Jayasinghe.

Additional Solicitor General Sanjay Rajaratnam appeared for the Transport & Civil Aviation Ministry Secretary and the AG.