In Smith v The Kit Kat Group (Pty) Ltd  12 BLLR 1239 (LC), the employee alleged that he was unfairly discriminated against when the employer refused to allow him to resume his duties for ‘cosmetically unacceptable’ reasons. In this regard, the employee had attempted suicide, which resulted in disfigurement to his face, as well as an impairment to his speech. After the suicide attempt the employee was hospitalised and underwent reconstructive surgery. He was allowed some time off by his employer to recover and was told that he could resume work some months later. When the employee expressed his desire to return to work he was told that his facial appearance was not acceptable and that it would remind employees of the unfortunate event. Furthermore, his speech was only 70% to 80% comprehensible. It was accordingly suggested that he should apply for a disability claim from the provident fund.
The employee decided not to pursue the disability claim as he was concerned that it would amount to fraud given the fact that it was a self-inflicted disability. On numerous occasions he informed the employer that he intended to return to work, but his e-mails either went unanswered or he was informed that he could not return to work. Eventually he had a meeting with the employer. During this meeting he was not formally dismissed but was simply told that he could not resume his duties for cosmetic reasons.
The employee then referred an unfair labour practice to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found that it did not have jurisdiction as the dispute had been referred late without a condonation application. He then abandoned the unfair labour practice claim and referred an unfair discrimination dispute to the Labour Court (LC).
Snyman J of the LC was of the view that it was clear that the employee had a disability as defined in the Employment Equity Act 55 of 1998 (EEA). Furthermore, the employer was of the view that the employee had a disability and thus the protection for disabled persons applied.
It was found that by not allowing the employee to resume work and stopping the payment of his salary, this amounted to a termination of his employment and thus the employment practice within which the employer discriminated against the employee was dismissal. The onus was on the employer to prove that the discrimination was fair. The employer argued that because of the speech impediment the employee could not fully perform his job. While this may have been true, there was no evidence to this effect. The court also found that the court could not rely on cosmetic reasons for the dismissal as he did not occupy a role such as a fashion model. Snyman J observed that he did not think that the speech impediment was so severe that the employee would not be able to perform his duties and he was of the view that only minimal accommodation by the employer would have been required. The employer did not carry out an investigation to determine the extent of the impairment nor did it consider whether the employee could be accommodated in another role. The Code of Good Practice: Dismissal expressly provides that employers must reasonably accommodate the needs of persons with disabilities and the employee should be consulted with in this regard. This did not happen.
While the Code of Good Practice: Dismissal provides that an employer need not accommodate an employee with a disability if it would impose unjustifiable hardship, Snyman J was of the view that it would not have constituted unjustifiable hardship to allow the employee to return to work to try and prove that he could perform his duties. If he could not perform them, then the employer could simply proceed with an incapacity process. The fact that it just refused to allow the employee to return to work amounted to discrimination on the grounds of disability.
The court awarded damages equal to 24 months’ remuneration, as well as a further six months compensation as solatium owing to the fact that the employee had suffered humiliation at the hands of his employer. The employer was also ordered to pay costs.
Note: In terms of the Labour Relations Act 66 of 1995 (LRA), a court can grant a compensation award up to a maximum of 24 months in relation to automatically unfair dismissals. However, in this case, the applicant’s claim in relation to discrimination was not brought in terms of the LRA but was brought in terms of s 10 of the EEA. In terms of s 50(2) of the EEA, a court has the discretion to grant an order that is just and equitable in the circumstances and there is no limit on the amount of compensation and/or damages the court is entitled to grant to an applicant.
Accordingly, the court’s award of damages equal to 24 months’ remuneration, as well as a further six months compensation as solatium was in accordance with its powers as set out in the EEA.
Arbitration of unfair discrimination disputes in the CCMA
In Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration  12 BLLR 1217 (LC), 632 employees referred an unfair discrimination dispute to the CCMA on the basis of unequal pay for equal work. The employer raised a point in limine that the CCMA did not have jurisdiction to determine the dispute as it was a collective dispute. In this case, the employees all earned below the prescribed annual earnings threshold determined by the Minister of Labour from time to time (the threshold) and thus relied on s 10(6)(aA) of the Employment Equity Act 55 of 1998 (EEA) to refer the dispute to arbitration at the CCMA as opposed to the Labour Court (LC). In this regard, this section allows an employee who earns below the threshold to elect whether to refer the dispute to the LC or to arbitration at the CCMA. The employer argued that the wording in s 10(6) of the EEA is in the singular and thus it only applies if the dispute involves a single individual. The commissioner ruled that the CCMA did have jurisdiction. The ruling was then taken on review.
Van der Merwe AJ dismissed the review application on the basis that the arbitrator had reached the correct decision. In this regard, Van der Merwe AJ was of the view that the intention of the legislature was to provide an option to all persons earning below the threshold to refer unfair discrimination disputes to the CCMA for arbitration so that the dispute could be adjudicated in a cost-effective manner. It was noted that an equal pay for equal work claim may be just as complex for one individual as for many individuals. Thus, the complexity of the matter does not necessarily increase because of the number of claimants.
This article was first published in De Rebus in 2017 (March) DR 35.