Employment law update – Unfair discrimination on the basis of disability in circumstances where the employee was reasonably accommodated by the employer

September 1st, 2018

Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowmans in Johannesburg.

In South African Municipal Workers Union obo Damons v City of Cape Town (LC) (unreported case no C306/2015, 20-4-2018) (Rabin-Naicker J) the applicant alleged that the city’s advancement policy unfairly discriminated against him on the basis of disability as it prevented him from advancing to the position of senior firefighter. The applicant was a firefighter who was permanently injured while on duty in 2010. Following an incapacity process, the applicant was transferred to a position in the Fire Service Billing section and subsequently to the Fire and Life Safety Education section in which he performed administrative tasks and education work.

He retained the designation of firefighter despite the fact that he could no longer perform the core functions of a firefighter owing to his disability. The career path for a firefighter is from learner firefighter to firefighter and then to senior firefighter. In terms of the advancement policy, a firefighter must successfully undergo a practical assessment, including a physical application of theoretical knowledge in order to advance to a senior firefighter. Furthermore, the job description of a firefighter at all levels provides that the employee must be physically fit and able bodied. The applicant was not physically fit as required in the job description and was not able to perform the physical fitness assessment or routine physical drills.

The city’s defence was that the physical requirement was an inherent requirement of the job and thus the applicant could not advance to senior firefighter. It was also argued that the policy did not contain a blanket ban on disabled persons and the applicant had been excluded on an individual basis for not satisfying the physical assessment requirement. The applicant said that he would never have agreed to the administrative role if he had known that there would be no career aspirations for him. Furthermore, he completed all the necessary courses for the promotion. The city conceded that as part of the incapacity process the applicant only agreed to the administrative role on the condition that certain requirements in relation to his current remuneration package and future promotions were met. Management did not reject these conditions and thus the offer of the alternative role was subject to these conditions.

Rabkin-Naicker J held that when considering issues of fairness under the Employment Equity Act 55 of 1998 (EEA) one must consider and balance the interests of the employee against the interests of the employer and a value judgment must be made based on the established facts and circumstances of the case. She held that the determining factor must be the impact of the discrimination on the victim. She remarked that the EEA does not allow a justification analysis under s 36 of the Constitution as in the case of the right to equality under s 9 of the Constitution. Under the EEA, the employer has the onus to establish fairness on a balance of probabilities. This onus is only discharged if fairness is found on a balance of all the relevant factors and evidence.

Rabkin-Naicker J found that the city had reasonably accommodated the applicant after his permanent disability and kept him within the structure in the policy as a firefighter. Thus, the city could not rely on the inherent requirement of the job as a defence as this was undermined by the city’s decision to retain the applicant as a firefighter notwithstanding that he could not perform active firefighting and could not perform the functions in the job description which are an inherent requirement of the job.

The court then had to consider whether applying the policy to the applicant in a manner, which would prevent his advancement due to his disability constitutes unfair discrimination. It was held that this barrier to the applicant’s advancement impaired his dignity. The court also took into consideration the fact that the reason for his disability was that he was injured on duty. Rabkin-Naicker J accordingly found that the application of the policy to the applicant amounted to unfair discrimination and the city was ordered to reconsider the applicant’s advancement application.

Dismissal for dishonesty

In Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration [2018] 8 BLLR 773 (LAC), an employee who was employed as a payroll supervisor was dismissed for dishonesty after having tampered with the formula on a payroll spreadsheet, which had the effect of increasing his pay by R 1 500. The Commission for Conciliation, Mediation and Arbitration (CCMA) found that the dismissal was substantively unfair and ordered reinstatement as the commissioner was of the view that the employee had merely made an error with the spreadsheet. On review, the Labour Court found that the employer had not been able to prove that the employee was at fault as at least six people had access to the spreadsheet formula.

The evidence at the arbitration was that the employee’s responsibility was to check the final payroll spreadsheet before sending it to the financial services manager for approval. The manager carefully inspected the spreadsheet and found that the bonus spreadsheet was altered to benefit the employee only. The evidence was that while six employees had access to the spreadsheet, it was only the employee and the financial services manager who had access to the passwords to alter the formulae in the final encrypted document. Given the fact that the employee’s role was to check the veracity of the information in the document, he either failed to properly check the information in relation to himself or he deliberately tampered with the spreadsheet for his own benefit. The employee alleged that after giving the spreadsheet to the financial services manager he realised that he had made an error in relation to his bonus calculation and reported this to the manager. The arbitrator found that this was the more probable version and that the trust relationship could be restored.

On appeal, the Labour Appeal Court (LAC) found that since the employee was the only person who stood to gain from the error, the most reasonable inference to draw was that he knew of the formula change and thus his dismissal was fair. Thus, the arbitrator did not reach a decision that a reasonable decision maker could make.

The LAC remarked that regard must be had to the nature of the inquiry and evidence put before the arbitrator when determining whether an arbitrator’s decision is one that falls into a band of decisions that a reasonable decision-maker could make. It was held that in this case the arbitrator misconceived the nature of the inquiry to be whether the employee tampered with the spreadsheet as opposed to whether or not he changed the formula. The arbitrator, therefore, ignored material evidence that the spreadsheet had been tampered with by way of a change to the formula and the fact that only the employee and the manager had access to the system to change the formula. It was held that the more plausible inference to be drawn from the facts was that the employee acted dishonestly. The appeal was accordingly upheld and the dismissal was found to be substantively fair.

This article was first published in De Rebus in 2018 (Sept) DR 40.