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[2019] ZAECPEHC 43
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McMahon v BDFM Publishers (Pty) Ltd (PS53/17) [2019] ZAECPEHC 43 (5 July 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PS53/17
In
the matter between:
JENNY
McMAHON Applicant
and
BDFM
PUBLISHERS (PTY)
LTD Respondent
Heard:
8 April 2019
Delivered:
5 July 2019
JUDGMENT
LALLIE,
J
[1]
On 1 June 1996 the applicant was employed as a Sub-Editor for the
Sunday Times, a
publication owned by the respondent’s
predecessor. She became a Production Editor of the Financial Mail, a
publication of
the respondent. The applicant’s life changed
completely when she was shot during a car high jacking which took
place on 23
February 2010 as she was arriving home from work at about
20h00. She was left paralysed from the waist down and wheelchair
bound.
The hi-jacking had a significant effect on the applicant’s
working life which culminated in the litigation at hand.
[2]
The applicant was hospitalised owing to the injuries she sustained
during the hi-jacking.
She was on sick leave and received her full
remuneration from the respondent for March to July 2010. On 1 August
2010 the applicant
resumed her duties and worked about 5 hours a day
owing to her disability. She realised that she had returned to work
too soon
as her disability forced her to take temporary incapacity
leave from November 2010 until the end of May 2012. During this
period
she received a portion of her remuneration from Metropolitan,
an insurance company (the insurer) through the respondent in terms
of
the respondent’s incapacity policy. The correctness of the
amount the applicant received from the insurer is in dispute
as the
applicant submitted that she received 50% of her remuneration while
the respondent alleged that she received 75%. After
interaction
between the parties which will be dealt with later in the judgment,
the applicant was declared permanently disabled
and left the
respondent’s employ in September 2012.
[3]
The applicant submitted that she did not receive the annual salary
increments for
2010, 2011 and 2012. Her temporary and permanent
disability benefits were consequently erroneously calculated based on
her 2009
remuneration. The applicant submitted that she was
discriminated against by the respondent based on her disability and
sought relief
in the form of payment of the shortfall which was
occasioned by the incorrect calculation of her disability benefits,
compensation
and damages. The respondent denied having discriminated
against the applicant. It further denied that the applicant was
entitled
to relief.
[4]
The respondent raised a point
in
limine
that this Court lacks jurisdiction to adjudicate the applicant’s
claims based on the incorrect calculation of her disability
benefits
as they had not been brought under section 77 of the Basic Conditions
of Employment Act
[1]
(the BCEA).
The applicant insisted that this Court has the necessary jurisdiction
as her claims were based on discrimination owing
to her disability. I
deemed it appropriate to determine the point
in
limine
after all the evidence had been led. In
Gcaba
v Minister of Safety and Security
[2]
the Constitutional Court re-affirmed that jurisdiction is ‘the
power or competence of a Court to hear and determine an issue
between
parties’. The Court further referred with approval to
Chirwa
v Transnet Ltd
[3]
where it held that jurisdiction is determined on the pleadings and
not the substantive merits of the case. The applicant’s
evidence was consistent with the manner in which her case has been
pleaded. Her entire pleaded case is based on discrimination
owing to
her disability. It makes no reference to section 77 of the BCEA. As
the applicant is
dominus
litis
she had the power to determine the nature of the dispute she wanted
the court to determine. The respondent therefore did not establish
this court’s lack of jurisdiction. The point
in
limine
can, in the circumstances, not succeed.
[5]
In their pre-trial minute the parties agreed that the following legal
issues had to
be decided:
‘
6.1.1
Whether the Applicant was discriminated against on the basis of her
disability in respect of remuneration increases
for the Respondent’s
financial year period 2010, 2011 and 2012.
6.1.2
Whether the Applicant was discriminated against on the basis of her
disability and as a result, suffered
mental and emotional anguish
during the period of her temporary disability by virtue of:
6.1.2.1 allegedly being
denied annual increases;
6.1.2.2 allegedly being
pressured to return to work;
6.1.2.3 allegedly being
pressured to work a full day under threat of a financial penalty if
she did not; and
6.1.2.4 allegedly by not
being reasonably accommodated as a result of her disability’.
[6]
The respondent submitted that in 2018 the applicant amended her
statement of claim
in a manner that had the effect of amending the
pre-trial minute signed by the parties in 2016. It was argued that
the attempt
to amend the pre-trial minute was impermissible. To the
extent that the attempt was made, the respondent’s argument is
correct.
A pre-trial minute is an agreement which the parties enter
into with a view of further defining the dispute before Court. As it
is an agreement, no party has the power to unilaterally amend it or
resile from it. The pre-trial minute which the parties entered
into
is valid and binding on them. The issues that will be determined are
those the parties agreed upon and any attempt to amend
the pre-trial
minute unilaterally is invalid and of no effect.
[7]
The applicant submitted that the respondent discriminated against her
on grounds of
disability in not paying her remuneration increases for
its financial year’s 2010, 2011 and 2012. It is common cause
that
after the applicant was shot on 23 February 2010 she was on sick
leave for 5 months. She received her full remuneration for the
5
months’ period from the respondent. The applicant returned to
work on 1 August 2010 but owing to her disability she took
temporary
incapacity leave from November 2010 until the end of May 2012. During
this period she received her remuneration which
consisted of a
portion of her actual remuneration from the insurer. When the
applicant resumed her duties on 1 June 2012 she was
on her 2009
salary. She was shot a month before the 2010 salary increases at the
respondent were due. The applicant testified that
the respondent’s
practice was that employees were told at the end of March what the
salary increase would be. She received
from the 2010, 2011 and 2012
financial years letters from the respondent’s editor, Mr
Mthombothi, informing her of the 6%
salary increase for each year.
The increases were paid across the board based on the cost of living.
The applicant testified that
she thanked Mr Mthombothi for each
annual increase including the increment she received in 2010 to 2012.
He never told her that
he had granted any increment in error.
[8]
Under cross-examination the respondent challenged the applicant’s
version by
seeking to rely on its reward policy. It was put to the
applicant that in terms of the reward policy she did not qualify for
annual
increment for the period 2010 to 2012 as, owing to her
absence, the respondent received no value from her. It was further
argued
that Mr Mthombothi issued the letters granting the applicant
the increments in error. The respondent led no evidence. The
applicant
tendered evidence on this issue. She denied that the
respondent applied the reward policy strictly and stuck to her
version which
remained unshaken under cross examination.
[9]
Mr Williams who had worked for the respondent for years and resigned
in 2010 while
holding the position of deputy editor testified on
behalf of the applicant. He had acted as the respondent’s
editor before
his resignation. He corroborated the applicant’s
version that before his resignation the respondent did not apply the
reward
policy strictly in effecting annual remuneration increments.
He also confirmed that increment was generally based on inflation and
that editors completed standard letters similar to the one the
applicant sought to rely on.
[10]
In the absence of evidence refuting the applicant’s version
that Mr Mthombothi granted
her annual remuneration increment for 2010
to 2012, nothing precludes its acceptance. The applicant testified
that the explanation
she was given by the respondent’s payroll
section for the non-payment of her annual remuneration increment for
2010 to 2012
was that because she was medically boarded during that
period, she did no work for the respondent. She submitted that the
only
reason for the non-payment of the increment was her disability.
[11]
Denying having discriminated against the application in not granting
her remuneration increase
for 2010 to 2012 the respondent relied,
inter
alia
,
on
Mbana
v Shepstone and Wylie
[4]
where it was held that the enquiry for unfair discrimination involves
three stages. The first is whether there is differentiation.
The
second is whether that differentiation amounts to discrimination.
Finally, the court must establish whether the discrimination
is
unfair. The third respondent also relied on
Louw
v Golden Arrow Bus Service (Pty) Ltd
[5]
where it was held that the mere averment of discrimination does not
constitute proof of discrimination. The overall burden of proof
remains on the employee. At the second stage the employer’s
obligation is to articulate a legitimate non-discriminatory reason
rather than establishing by preponderance of the evidence that its
proffered reason was the real reason.
[12]
The respondent submitted that it was under no obligation to grant
annual increases. The applicant,
on the respondent’s view
therefore had no contractual right to a yearly increase. It instead
had the prerogative to decide
when and how to implement its salary
increase including attaching conditions thereto. The respondent
denied that the applicant
proved that she was a victim of
discrimination as envisaged in section 6 (1) of the Employment Equity
Act
[6]
(EEA). It further
submitted that she failed to establish a link between the
differentiation of not being granted the salary increase
on a listed
or analogous ground. The respondent argued that the applicant
conceded that she was informed that she did not qualify
for salary
increases because she was not at work for the better part of the
period in question. It submitted that the differentiation
had nothing
to do with her disability but was occasioned by her absence and
inability to perform her duties which were considerations
for salary
increases.
[13]
The respondent’s arguments are not supported by evidence. When
the test in
Mbana
[7]
is applied, it proves that there was differentiation between the
applicant and her fellow employees who received annual increases
during the impugned period. Her evidence that they received the
annual increments based on the inflation rate was not challenged.
The
respondent argued that the differentiation was legitimate in that the
applicant did not work during the impugned period and
therefore did
not qualify for the increase in terms of the reward policy. The
respondent sought to rely on the evidence tendered
by Mr Williams
that the respondent considered the provisions of the reward policy in
granting increases. It argued that such application
supported its
version that the applicant did not qualify for the increases. The
respondent’s argument overlooks the evidence
of both Mr
Williams and the applicant that the reward policy was not applied
strictly and that the respondent relied on the inflation
rate in
granting increases across the board. If further fails to take into
account the evidence that the editor had the power to
determine
increases,
albeit
they had to be ratified by the respondent’s head office. The
applicant’s evidence that she was granted increases and
thanked
Mr Mthombothi for them for the impugned period was not challenged
under cross-examination. Further, no evidence was led
to refute it.
[14]
The applicant proved a link between the differentiation which was the
non-payment of her salary
increases and her disability. She proved
that Mr Mthombothi took the decision that they be paid with the
necessary authority. The
pay-roll section of the respondent refused
to implement the decision on the grounds that owing to her paralysis
and disability
from being shot she was unable to perform her duties
for the better part of the impugned period. Had the applicant not
been disabled,
she would have received her annual increases as she
did before she was disabled. As the applicant established the causal
link between
the differentiation and her disability the respondent
had to show that it was fair. It, however, elected not to tender
evidence
and therefore failed to seize the opportunity of proving the
fairness. In the premises, the applicant proved that the respondent’s
non-payment of her salary increase between 2010 and 2012 constituted
unfair discrimination.
[15]
The applicant submitted that the respondent
disregarded her complaint that the insurer paid her 50% instead
of
75% of her salary during her temporary disability leave. She sought
the respondent to pay her the difference between the amount
that was
due to her and the actual amount paid. As she alleged that the amount
was due to her she had to discharge the onus of
proving her claim.
[16]
The applicant’s version faltered under cross-examination as she
did not deny that she was
paid in terms of the respondent’s
temporary disability policy. She based her claim that she was
underpaid on a pension document
employees received annually. She
presumed that the document was part of the pension policy. It was,
however, not tendered as evidence.
I therefore accept the version put
by the respondent to the applicant that she received the full amount
which was due to her in
terms of the temporary disability policy.
[17]
A further legal issue the parties presented for determination was the
applicant’s submission
that the respondent discriminated
against her on the basis of her disability and as a result she
suffered mental and emotional
anguish during the period of her
temporary disability by virtue of not being reasonably accommodated
as a result of her disability.
Section 6(1) of the EEA prohibits
direct and indirect unfair discrimination in employment policy or
practice on a number of listed
grounds which include disability.
Section 11 of the EEA provides that when unfair discrimination is
alleged, based on a listed
ground, the employer against whom the
allegation is made bears the onus of proving its fairness.
[18]
It is common cause that while on temporary disability leave in mid
May 2012 the applicant was
contacted by an employee of the
respondent’s pay roll section and told to return to work by 1
June 2012 or she would have
no job to return to. The reason for the
instruction was that the disability insurance had expired. She obeyed
although she was
not strong enough to resume her duties. The
applicant started by working a 3 hour day. She then doubled the
hours. Although there
was at some stage a flexibility in working
hours at the respondent, Mr Mthombothi, acting within his powers as
the editor insisted
that employees work a full day at the
respondent’s offices and leave at 17h00.
[19]
The applicant approached Mr Mthombothi and requested to not to work
from the respondent’s
premises until 17h00 but work from home
for a portion of her working day. Mr Mthombothi refused on the
grounds that granting her
request would be a security risk. The
applicant was disappointed as she had set up a home office in
anticipation of having her
request acceded to. She felt discriminated
against because it was common practice that staff members from the
respondent’s
Cape Town office were allowed to work from home.
Ms Bisseker, the economic editor was permitted because she had young
children.
Mr McNulty, the section head also worked from home. The
security risk that the respondent would have been exposed to had the
applicant’s
request been granted was not disclosed because Mr
Mthombothi neither told her nor testified. Both the applicant and Mr
Williams
testified that granting the request would not have posed a
risk to the respondent. They testified that documents were sent
by fax and later via e-mail all the time and the respondent suffered
no prejudice as a result. Mr Williams added that until his
resignation in 2010 forwarding documents via email was not an issue.
[20]
The applicant submitted that the respondent failed its duty of
granting her reasonable accommodation
and effect the necessary
adjustments which included allowing her to work from home for a
portion of her working hours to enable
her participate in its
employment and retain her job.
[21]
The respondent submitted that the applicant had failed to establish a
prima facie
case of discrimination as she conceded that she
was not doing the same duties as the employees who had been granted
permission to
work from home. This argument has no basis in the
absence of evidence by Mr Mthombothi disclosing the risk the
respondent would
have been exposed to, had the applicant’s
request been granted. Ms Bisseker was permitted to do all her work
from home based
on her personal circumstances of having young
children. The applicant requested even less than what Ms Bisseker was
granted.
[22]
The applicant sought to rely on
Standard
Bank of
South
Africa v CCMA and others
[8]
in arguing that the respondent failed in its obligation to grant her
reasonable accommodation and retain her in its employ. The
respondent
denied and submitted that the
Standard
Bank
case is of no relevance as it dealt with unfair dismissal for
incapacity when in the matter at hand the applicant was not
dismissed.
While I acknowledge the distinction the respondent based
its argument on, I find the following dictum from the
Standard
Bank
case relevant:
‘
The Constitution,
several statutes including the EEA and the NRA and Codes of Practice
protect employees with disabilities as a
vulnerable group because
they are a minority, with attributes different from mainstream
society; unemployment, lower wages, poor
working conditions and
barriers to promotion plague people with disabilities, here and
abroad’.
[23]
Item 6.1 of the Code of Good Practice: Employment of People with
Disabilities (the code of good
practice) provides as follows:
‘
6.1
Employers should reasonably accommodate the needs of people with
disabilities. The aim of the
accommodation is to reduce the impact of
the impairment of the person’s capacity to fulfil the essential
functions of a job.’
The
respondent submitted that it fulfilled its statutory obligations in
that at all reasonable times during the period of gradually
allowing
the applicant to return to work it consulted and was kept abreast
with the applicant’s condition. It relied on meetings
which
were held on 17 and 19 August 2012 and on 5 and 26 September 2012.
The applicant argued correctly that what was discussed
in the
meetings falls short of constituting the respondent’s
fulfilment of its duty to reasonably accommodate her. The applicant
complained about her exclusion from the meetings of 5 and 26
September 2012 between the respondent and her occupational therapist.
The exclusion did not have the effect of reducing the meetings from
being attempts by the respondent to accommodate her as their
agenda
was about how the respondent could accommodate her.
[24]
In the report on the meeting of 29 August 2012 with the respondent’s
representatives, the
occupational therapist stated that the applicant
undertook to work 29 hours a week which constituted 72.5% of her full
hours of
work. She added that she would review the applicant’s
progress at the end of September 2012. She added that the applicant
was in consultation with her doctor to try and reduce medication
which made her drowsy. She was also seeing a psychologist weekly
to
address her emotional and psychological issues. At the meeting of 5
September 2012 the applicant reported that she was coping
with
working 29 hours a week. The respondent intimated that the applicant
was expected to return to work on a full term capacity
from October
2012. It was argued that the situation would be reviewed at the end
of September 2012. By 10 September 2012 the respondent
had informed
the applicant that her salary would be cut if she did not work return
to work on a full time basis. The last meeting
was held on 26
September 2012. The applicant expressed her inability to return to
work full-time. The option of allowing the applicant
to perform
certain tasks from home was discussed but the respondent expressed
the view that it was not feasible.
[25]
The respondent argued that the possibility of having the applicant
work from home was considered
but could not be accommodated owing to
the nature of her duties which included competition and a security
hazard. It was further
argued that allowing the applicant to do some
of her work from home would impose an unjustifiable hardship on the
respondent’s
business. In the absence of evidence by the
respondent’s employee who took the decision that granting the
applicant’s
request to do part of her work from home would
expose the respondent to risks and the evidence of those who took the
decision that
it was not feasible, the respondent’s argument
that granting the request would constitute an unjustifiable hardship
has no
basis. The risk was never disclosed so were the reasons for
the infeasibility.
[26]
On 26 September 2012 when the respondent conveyed to the applicant
the news that she had to return
to work full time and that deductions
would be made for her salary for each hour she was not at work the
applicant was shocked
and disappointed. It must be noted that the
respondent took the decision before the end of September 2012 against
the decision
taken with the occupational therapist on 29 August 2012
that the applicant would work 29 hours weekly until the end of
September
2012 when her progress would be reviewed. The applicant’s
capacity was due to be reconsidered at the end of September 2012,
however, the respondent took a final decision on the feasibility of
her performing part of her duties from home and on the consequences
of her inability to do so before then.
[27]
The respondent failed to accommodate the needs of the applicant. It
expected the applicant to
perform her duties like all the other able
bodied employees. The applicant’s evidence that she was
assisted by security guards
to get out of her car on her return to
work at the behest of the respondent was not challenged. The
respondent took a decision
that she would not be allowed to do part
of her work from home and struck to it notwithstanding decisions it
reached with the occupational
therapist. The applicant proved that
the respondent discriminated against her based on her disability. But
for her disability the
applicant would have continued working for the
respondent and earning an income. Her evidence that she was a hard
working dedicated
employee who loved her job was not challenged. The
applicant was squeezed out of her job by the respondent when it
threatened to
reduce her salary by making deductions for each hour
she was not at work forcing her to access her permanent disability
benefit.
The respondent’s argument that it accommodated the
applicant by offering to pay her for the hours she was able to work
at
the workplace is untenable. It defeats the purpose of
accommodating employees with disabilities which is to reduce the
impact of
the impairment of the person’s capacity to fulfil the
essential functions of a job. No valid reasons were given for not
accommodating
the applicant by allowing her to do part of her work
from home. In September 2012 when the applicant was informed that
deductions
would be made from her salary for each hour she was not at
work the applicant was receiving her 2009 salary. Owing to her
disability
she had to employ 2 people to assist her. She could not
take care of herself and needed hours to prepare for going to work.
The
respondent did not justify its conduct of discriminating against
the applicant. Her discrimination was therefore unfair.
[28]
The applicant sought the maximum compensation. I am satisfied that
the applicant justified the
amount of the compensation as the
applicant had no reason to discriminate against her and force her out
of her gainful employment
after enjoying the benefit of her long
service. The applicant sought damages. She, however, led no evidence
to support her claim
for damages. The applicant sought a costs order
against the respondent. Both the law and fairness justify the
granting of the order
as the applicant should not be out of pocket
for seeking relief for the violation of her rights.
[29]
In the premises, the following order is made:
Order:
1. The
respondent discriminated against the applicant on the basis of her
disability.
2. The
respondent is ordered to pay the applicant compensation equivalent to
twenty four months remuneration (R495
212.36) per annum multiplied by
two equalling R990 426.72 plus the remuneration increases granted by
the respondent in April 2010,
2011 and 2012 compounded multiplied by
24.
3. The
respondent to pay the applicant’s costs
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr J. D Crawford of
Crawford and Associates
For
the Respondent:
Mr N Mbuyisa of Puke Maserumule Attorneys
[1]
Act 15 of 1997.
[2]
2010
(1) SA 238
(CC) para 74-75.
[3]
[2008]
2 BLLR 97 (CC).
[4]
(2015)
36 ILJ 1805 (CC) para 27.
[5]
[2000] 3 BLLR 311 (LC).
[6]
Act 55 of 1998.
[7]
Id fn 4
[8]
[
[2007] ZALC 98
;
2008]
4 BLLR 356
(LC).