By Moffat Ndou

In a recent decision of the Labour Court in EWN v Pharmaco Distribution (Pty) Ltd (LC) (unreported case no JS654/10, 22-9-2015) (LaGrange J), the court had the opportunity to decide whether the employer can dismiss an employee for failure to submit to medical treatment and therefore that the employee failed to comply with the provisions of the employment contract.

The facts

The applicant was employed as a pharmaceutical sales representative on 1 July 2008 under a fixed-term contract. In mid-July 2009 she was employed on an indefinite basis under a written contract of employment. A term of that contract provided, inter alia, that whenever the company deems necessary, the applicant will undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The term of the contract included psychological evaluations.

In December 2008 the applicant’s performance appraisal stated that her performance was ‘exceptional and consistently demonstrates excellent standards in all job requirements’. During January to October 2009, the applicant queried the calculation of commission as determined by the employer and delays in paying her commission due; and later lodged a formal grievance. Consequently she was given a notice to attend a disciplinary inquiry. The inquiry concerned six charges, all of which arose from her interactions, with various staff members in her efforts to resolve her complaints about her commission payments. She was found guilty of some of the charges, which related to the alleged incidents. The applicant was issued with a final written warning based on the inquiry findings, against which she appealed. She was later suspended with the instruction that she must present herself for medical examination to determine whether or not she was fit to deal with her tasks. She was further warned in the letter that failure to attend the examination would constitute a serious offence.

The applicant was later dismissed for a ‘particularly serious and/or repeated wilful refusal to carry out lawful instructions or perform duties’. The instruction she failed to perform was to present herself to a psychiatrist, for medical examination. The applicant, who suffered from a bipolar disorder, which she maintained was under control, claimed that the instruction was unlawful and was an act of unfair discrimination based on disability amounting to an act of harassment. The respondent company contended that the instruction was both reasonable and lawful in terms of the applicant’s contract of employment, and was necessary to determine if she was ‘fit to work’. The respondent claimed the applicant was required to undergo such assessment ‘on account of her inappropriate, aggressive and irrational behaviour towards fellow workers and management on, inter alia, 20 October and 23 October 2009’.

The Labour Court was required to determine the following issues –

• whether the provisions in the applicant’s contract of employment requiring her to undergo medical testing were enforceable or void;
• whether her dismissal for failing to submit to a medical examination on the employer’s instruction was automatically unfair in terms of s 187(1)(f) of the Labour Relations Act 66 of 1995; and
• in the event her dismissal was not automatically unfair, whether it was substantively or procedurally unfair.

Whether the instruction was ever permissible

Section 7 of the Employment Equity Act 55 of 1998 prohibits the medical testing of employees, unless legislation permits or requires the testing or it is justifiable. The court observed that no exception to the prohibition against medical testing is made on the basis that an employee consented to the medical testing. Section 7(1)(a) (which allows for medical testing of employees if legislation permits) clearly had no application in the case. Consequently, the respondent could only require the applicant to undergo a test if the requirements of s 7(1)(b) were met. In terms of s 7(1)(b) medical testing is only permitted if it is justifiable in the light of –

• medical facts;
• employment conditions;
• social policy;
• the fair distribution of employee benefits; or
• the inherent requirements of a job.

First the court noted that the medical facts were that: The applicant suffered a bipolar disorder and that she was undergoing regular therapy and being medicated for her condition and there was also the opinion of her psychologist, that her condition did not affect her ability to function effectively in her work environment.

The court rejected the respondent’s argument that the employment conditions justified the medical examination in that it could not risk employing someone in the position if there was a question mark about their ability to remain mentally stable to cope with the demands of the job. The court pointed to the fact that the evidence did not support the view that conditions of work in the job were inherently stressful, still less that any expressions of anger or frustration would render the person unable to perform their duties. The evidence showed that the applicant’s outburst was triggered by a dispute over an important aspect of her remuneration and had nothing to do with performance. The court also dismissed the argument that it is an inherent requirement of the job of a pharmaceutical sales representative to be medically certified fit for work, because the evidence did not support the argument.

Consequently the court found that, in the absence of being able to establish that the referral to medical examination was justifiable under one of the exceptions to the prohibition in s 7 of the Employment Equity Act, the term of the contract was unlawful and unenforceable.

Whether the instruction amounted to discrimination

The court noted that it had established that the instruction, which the employee was dismissed for disobeying was an unlawful one. But in itself that is not sufficient to establish that her dismissal was on account of a prohibited reason. The court observed that the employee’s performance had been rated as ‘exceptional’; she had no history of absenteeism; the company had not considered it necessary to subject any employees to pre-employment medical or psychological examinations; when the employee had an outburst none of the staff had felt threatened by her. The court concluded that the ostensible rationale advanced for the examination, namely to determine if she was fit to do her work, was hard to believe. It seemed more probable on the evidence that the predominant reason the employee was required to undergo the testing was because senior management became aware of her bipolar status. Had she not suffered from that condition she would consequently not have been placed in a situation where she faced dismissal for not acceding to an examination based solely on her condition. Consequently, the court was satisfied that the dismissal in the circumstances was based on her refusal as a person with a bipolar condition to undergo a medical examination, which she would not have been required to undergo, but for her condition. The stigmatising effect of being singled out on the basis of an illness that she was managing, notwithstanding the absence of any objective basis for doubting her ability to perform, is obvious. The act of requiring her to submit for examination in the circumstances was also an act of unfair discrimination in terms of s 6 of the Employment Equity Act.

Turning to whether the respondent unfairly discriminated against the employee and was her dismissal automatically unfair, the court observed that the applicant would have not been required to undergo testing on account of the conduct for which she was disciplined alone. The knowledge that she was bipolar was, therefore, decisive. The court accordingly found that the clause of the employment contract, which gave the employer the power to subject the employee to medical examination, was invalid; amounted to unfair discrimination; and the dismissal was automatically unfair.

Moffat Ndou LLB (UJ) LLM (NWU) is a law researcher at North West High Court in Mafikeng.

This article was first published in De Rebus in 2016 (April) DR 44.