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Employment Practices Liability - Looks do not determine competence

Published

2017

Thu

20

Apr

 

 

 

 

Seonita Avery, Claims Manager
Camargue Underwriting Managers (Pty) Ltd

 

 

 

 

“This matter was borne out of a tragic event, which, instead of being resolved on the basis of compassion and good sense, escalated into unfortunate litigation on the basis of discrimination. I am still surprised how often employers can be short sighted where it comes to personal circumstances of their employees. The employment relationship, in the modern constitutional era, is akin to a marriage, and as an employer one has to ask yourself how you would treat your spouse in the case of personal tragedy, and then act accordingly” – Acting Labour Court Judge S Snyman Presiding Officer (Smith v Kit Kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016).

In some industries, such as the fashion industry, having the right look is what determines whether you get the job or not. Whether a model can argue unfair discrimination based on their looks or a disability when not getting a job is debatable of course.

The facts of the case are very different from a requirement to have a particular physical attribute to carry out the job satisfactorily. The above case was heard at the Labour Court after the CCMA found that the matter fell outside its jurisdiction.

Mr. S was an employee of X (Pty) Ltd. He suffered from depression which resulted in an attempted suicide. He was not successful with his suicide attempt, instead he was left with a severe facial disfigurement and a speech impediment. Following time spent in hospital and facial reconstruction surgery he spent time at home recovering. Mr. S was employed as General Manager – Non-Food at X (Pty) Ltd. The Co - CEO assured Mr. S’s brother in law that once he is recovered he could go back to work.

When S had recovered sufficiently to return to work he informed his employer. The other Co – CEO then indicated to Mr. S that he could not return to work as he was no longer “facially acceptable” and that his presence would be a constant reminder to the other employees of what happened to him. Following this turn of events Mr. S and his brother in law met with company representatives and was once again informed that he was “cosmetically unacceptable” and would traumatize the other employees if he came back to work.

It was suggested the Mr. S pursue a disability claim, which he declined as he was of the view that he was not actually disabled as his injury was self-inflicted. Despite several emails and meetings between the parties the matter could not be resolved.

The Court noted that in the case of National Union of Metalworkers of South Africa and Others v Abancedisi Labour Services, it was found that “A refusal to allow an employee to do the work he was engaged to do may constitute a wrongful repudiation and a fundamental breach of the employment contract which vests the employee with an election to stand by the contract or terminate it….” This is effectively what X (Pty) Ltd had done by failing to allow Mr. S to return to work due to their view that he was “facially unacceptable”. This failure resulted in them unilaterally terminating the employment contract. Mr S was therefore considered to have been discriminated against by his employer and was therefore unfairly dismissed.

The Court ruled that Mr S was unfairly discriminated against due to his disabilities and ordered that the employer pay damages and compensation to the value of R1 540 199.40 to Mr. S. This equates to 30 months’ salary which is 6 months more than the norm. The additional 6 months being for the humiliation Mr. S suffered at the hands of his employer.

What this judgement reiterates is that having a disability does not make one incompetent or unable to work.

 
Source: Camargue Underwriting Managers (Pty) Ltd
 
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