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[2021] ZAGPPHC 468
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Reddy v South African Revenue Services and Another (EQ19443/21) [2021] ZAGPPHC 468 (12 July 2021)
EQUALITY
COURT IN PRETORIA
SITTING
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA
Case
Number:
EQ19443 / 21
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Date:
12 July 2021
In
the matter between:
PRIYEN
REDDY
APPLICANT
and
SOUTH
AFRICAN REVENUE SERVICES
FIRST RESPONDENT
MARGARET
LEWIS
SECOND RESPONDENT
JUDGMENT
KUBUSHI
J,
Delivered:
This judgment
was
handed
down
electronically by
circulation
to the
parties' legal representatives by e-mail.
The date and time for hand-down is deemed to be
10h00
on 12 July
2021
INTRODUCTION
[1]
The complainant, PRIYEN REDDY ('"Mr Reddy”) instituted
proceedings before
the Equality Court in terms of section 20 of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 ("the
Equality Act") read with Regulation 6 (1)
thereof. The gravamen of the complaint is that Mr Reddy has been
unfairly placed
on early retirement due to ill health by his
erstwhile employer, the South African Revenue Services (“SARS"),
because
of his disability. In essence his complaint is that in
placing him on early retirement SARS contravened Section 9 read with
hem
23 (1) of Schedule 6 to the Constitution of the Republic of South
Africa, 1996 ("the Constitution"). Mr Reddy, as such,
claims that his rights as a person with disability stipulated in the
Constitution have been violated by SARS.
[2]
SARS has not filed any affidavit or response to Mr Reddy's complaint
and has also,
not filed heads of argument even when asked to do so.
On perusal of the documents filed by Mr Reddy it is evident that he
has complied
with the requirements of the Equality Act and the
Regulations in placing this matter before the Equality Court It is
for this reason
that I opt to proceeded with the matter in SARS'
absence.
[3]
This court directed that Mr Reddy' s
complaint be determined on the pap
e
rs
filed
on Caselin
e
s
witho
u
t
o
ral
hearing
as
pr
o
v
ided
for in th
i
s
Div
i
s
ion's
Consolidated Directives re Court Operations during the National State
of Disaster issued
by
the
Judge
President on 18 September
2020.
FACTUAL
MATRIX
[4]
Mr Reddy was employed by SARS since 12 January 2015 as an In bound
Contact Centre
Agent (Employee number00013981) on Grade 3b
performance Level.
[5]
In a letter dated 21 February 2018 Mr
Reddy
was in formed that
he has been declared as a person with disability by SARS. The name of
the disability as recorded in Mr Reddy's
declaration of disability
form is
' Depression and Generalised Anxiety Disorder’.
And
the nature of the disability is recorded as
'Mental illness
-
Severe depressive episodes without psychotic symptoms and panic
disorder'.
[6]
In October 2019, due to an incident that occurred at work, Mr Reddy
was
suspended from employment. The
reason for suspension is recorded in a letter
sent to
Mr Reddy by SARS dated 30 October 2019, as being that he
'mode
threatening
remarks
insinuating violence
and
mode
racial
remarks
to
other
employees.
Furthermore, the employer believes your presence at the workplace
poses a safety risk to other employees.'
[7]
Mr Reddy was referred to SARS HRM for an independent assessment to
determine his health
status and current level of functionality. The
HRM found that Mr Reddy has chronic mental/behavioural disorder,
complicated by
comorbidity of Axis 1 pathology and intermittent
compliance; has significant cognitive impairment precluding him from
meeting the
open labour market standards of his own
or
an
alternative occupation; and that the sick leave usage correlates with
chronic medical condition. susceptible to relapse. The
HRM,
consequently, recommended that Mr Reddy be considered
for
Ill
Health Retirement Benefits based on his mental status and
perpetuating nature of his symptom profile.
[8]
SARS decided on the basis of this recommendation to place Mr. Reddy
on early retirement
due to ill health, that is, he was medically
boarded. Mr Reddy's appeal of SARS' decision was turned down on the
basis that
'There is
no
new
medical
evidence
that
has
been
submitted
that
would
warrant
a
different outcome.’
[9]
Not satisfied with the outcome, Mr Reddy referred the complaint to
the Commission
for Conciliation, Mediation and Arbitration ("CCMA”)
Where, on the basis of the formulation of his claim, he was informed
that discrimination cases are not handled in the CCMA but should be
referred to the Labour Court for arbitration. Mr Reddy launched
proceedings in the Labour Court but it is not apparent from the
papers filed what eventually happened in those proceedings. Be
as it
may, on 19 April 2021 Mr Reddy approached the Equality Court for
relief.
APPLICABLE
LAW
[10]
The purpose of the Equality Act is to give effect to section 9 read
with item 23 (1) of Schedule
6 to the Constitution, so as to prevent
and prohibit unfair discrimination and harassment; to promote
equality and eliminate unfair
discrimination; to prevent and prohibit
hate speech; and to provide for matters connected there with.
[11]
Section 20 (3)
(a)
of the Equality Act stipulates that a
presiding officer of the Equality Court concerned should decide
whether a matter instituted
in the Equality Court, should be heard in
that court or whether it should be referred to another appropriate
institution, body,
court, tribunal or other forum, which in the
presiding officer's opinion, can deal more appropriately with the
matter in terms
of that alternative forum's powers and functions.
[12]
Section 13 of the Equality Act envisages a two stage enquiry, the
first part of which under s
13 (1) is for the complainant to
demonstrate, on the thin threshold test of
prima facie
proof,
that there was a discriminatory act or omission. If such
discrimination is found to have taken place, the second stage is
to
enquire whether such discrimination is unfair based on any of the
prohibited grounds in terms of the Equality Act
[13]
I, consequently,
have
to first determine whether on the papers
before me, a
prima
facie
has been made
out.
[14]
The test
for
determining
whether
a
claim
based
on unfair
discrimination
should
succeed was laid down by the Supreme Court of Appeal in
Safi
v Na
t
iona
l
Commissioner
of the South
African
P
olice
Service
and
Oth
e
r
s
,
[1]
w
h
erein
that court
expressed
the following:
“
[10].
. . What needs to be established at the commencement of the enquiry
is whether the policy or practice on which the challenged
decision
was based, Differentiates between people. If it does, whether the
differentiation bears a rational connection to a legitimate
government purpose. If it does, the policy
or
practice
may or may not, depending on the circumstances of a particular case,
violate section 9 (3) of the Constitution.”
ANALYSIS
[15]
Mr Reddy brought proceedings before the Equality Court contending
that
SARS
has unfairly discriminated him
on
the basis
of
his
disability.
[2]
As a consequence
of such unfair discrimination he was placed on early retirement
due
to ill
health.
[16]
In order to
provide
a full
understanding, section 9 of the Equality Act
[3]
sho
u
ld
be
read
together
wit
h
the
defin
i
tion
of
"discri
m
ination”
[4]
an
d
"prohibited
grounds"
[5]
in s 1 (1) of
the Equality Act. The act complained of should as a result impose
burdens, obligations or disadvantages on, or withhold
benefits,
opportunities or advantages from any
person on
the
ground of
disability.
[17]
It is only necessary to show discrimination as defined in the
Equality Act, that is, the complainant
need only establish the
elements of discrimination, namely: an actor omission that may be
direct or indirect that imposes a burden
or withholds a benefit on a
prohibited ground.
[18]
The element of whether the claim
is
based
on a prohibited ground has
clearly
been proven in the p
a
p
e
rs
before me.
SARS, as
ear
l
ier
s
tated
has
declared Mr Reddy as
a
person
with disability. Discrimination on the basis of
disability
is
one
of
the
grounds
provided
for in
the
Equality Act
[6]
What Mr Reddy
ought to further establish is that there has been an act or omission
that
may
be
director
indirect
that
imposes a burden
or
withholds a benefit.
[19]
Mr Reddy’s complaint is succinctly set out in the heads
of argument as follows:
“
FACTUAL
BACKGROUND TO CASE:
1.
I Priyen
R
eddy
was employed by South African Revenue
Services since 12 January 2015 as an Inbound Contact Centre Agent
(Employee id 00013981) on
Grade 3b performance level. I currently
suffer from paranoid Schizophrenia and I decided to declare my
limitations to the Employer
on 14 December 2017 which included nature
of my disability which is recurring and likely to occur again I also
reported challenges
in the context of working environment which
included (Conflict with colleagues who misunderstand my illness and
possible related
environmental stress. I also declared that I am
receiving medication and therapy as an assistive mechanism the
proposal for possible
reasonable accommodation would be related to
leave.
2.
My declaration to the employer was accepted and I received the
outcome letter of my declaration on 12 March
2018 and had forwarded
it to the Ops manager at the time James Baloyi on the
very
same day, however the employer ignored my declaration and later
revealed during Stage 2 incapacity enquiry that he did not know
I
have a disability.
3.
I was subjected to unfair discrimination and bullying by co-workers
which I do relate as interpersonal issues
the constant harassment was
detrimental to my health and exacerbated my already fragile condition
, the situation was becoming
unbearable there was hardly or no
intervention by management t to relieve me of such environmental
stressors. I put in a grievance
for Charmaine Pretorius on 20
September 2019.
4.
The bullying and harassment which occurred on Wednesday 16 October
2019 resulted in me being suspended on 30
October 2019. The employer
(HRM) relied on assumption andhears3yevidence that my presence at the
workplace poses a threat to other
employees, based on my disability.
On Wednesday 16 October 2019 I approached centre manager Rirhandzu
Ndubane in order to assist
me with a formal grievance to which she
Refused in doing act she automatically subjected me to unfair labour
practices. The employer
did not attempt to resolve the issue and did
not follow regulations according to the Labour Relations Act, section
185.1 was subsequently
suspended and requested to attend a full
health assessment on 18 may 2020 which I agreed and though it was for
purposes required
as investigations regarding allegations against me
for the suspension.
5.
The suspension was unreasonably long more than 12 months there was no
disciplinary
hearing instead the employer initiated a ill Health
Incapacity Stage 2 Enquiry. The fact that there was no fair
disciplinary hearing
within 6 months as regulated by the Labour
Relations Act, section 185 leads to automatically unfair labour
practices and the Employer
contravened Section 9 read with item 23(1)
of Schedule 6 of the Constitution of the Republic of South Africa
1996.
6.
The Employer relied on Medical Information presented by Alexander
Forbes, and typed discriminatory unfounded assumptions directed at my
disability, with the aim of constructively forcing me to
take early
retirement due to Ill health as a form of no fault dismissal. During
the Stage 2 enquiry the Employer alleged that he
did not know that in
fact I had a disability and accused me of not informing him. I
contended then the declaration was sent on
12 March 2019. The
Employer further admitted the fact that the Stage 1 enquiry had not
been closed prior to initiating Stage 2
enquiry. This fact is another
deviation of the employer regarding the Labour Relations Act, section
185 as unfair labour practice.
7.
The Employer alleges that I was accommodated on four instances
of
extended sick leave applications as reasonable accommodation as well
as e filing activations.
8.
Extended sick leave is a mechanism available to every ordinary
SARS
employee. I contended that had the employer assisted me with
discretionary leave as stipulated in SARS Conditions of Service
PAGE
24of 31, there might have been more opportunity for me to protect my
employment by doing this the employer did not follow
its own
Conditions of service. The employer deviated from legislation Unfair
Discrimination Act 4 of 2000 as a mended, Tile Employer
contravened
Section 9 read with item 23(1) of Schedule 6 to the Constitution of
The Republic of South Africa, 1996 .
9.
I contended that the reasonable accommodation with Extended
Sick
leave and E Filing activations was unjust and further exacerbated my
illness resulting in further anxiety and stress. The
accommodation on
E filing activations and extended sick leave had a negative effect on
my attendance, the employer was not careful
to avoid indirect
discrimination of disability and the latter as a resort to unfairly
dismiss me. The employer deviated from legislation
Unfair
Discrimination Act 4 of 2000 as amended. The employer contravened
section 9 read with item 23(1) of Schedule 6 to the Constitution
of
The Republic Of South Africa,1996 .
10.
The Health Assessment Summary used to force me into early retirement
due to
Ill Health on 12 August 2020 is further discriminatory to an
unjustifiable extent that it discriminates; up unto my family history
of "mental illness" this fact amounts to automatically
unfair discrimination by association. The extreme callousness
and
contents of the document further discriminates by propagation and
describes my thought process as negative towards other employees
instead of the extent to which I can do my work. My impairment is
described as significant cognitive impairment the employer deviated
from legislation Unfair Discrimination Act 4 of 2000 as amended. The
Employer contravened Section 9, read with item 23(1) of Schedule
6 to
the Constitution of The Republic Of South Africa,1996,
11.
There
was
no extent to which has been taken by the employe.t
to adapt the working environment or alternative placement short of
dismissal.
There was no monitoring or counselling prior to the
employer considering dismissal. The employer deviated from
legislation Unfair
Discrimination Act 4 of 2000 as amended. The
Employer contravened' Section 9 read with item 23(1) of Schedule 6 to
the Constitution
of The Republic of South Africa,1996.
12.
The Stage 02 Enquiry held on 12 August 2020 Should have been punitive
instead
of disciplinary. The employer alleged that the extended sick
leave was a means of reasonable accommodation, I contended that my
absenteeism arose from my disability and cannot be used as
disciplinary action against me this can amount to automatically
unfair
discrimination of disability. the employer deviated from
legislation Unfair Discrimination Act 4 of 2000as amended,
13.
My appeal against the no fault dismissal was turned down for reasons
that no
new medical evidence was presented. The employer changed the
word early retirement due to ill health which is a lump sum pay out
or my pension fund into medical boarding I contended that proper
medical boarding is applied through the medical scheme where I
would
still have the advantage of medical aid in order to treat my chronic
condition, the payment of my pension benefits is a benefit
to any
ordinary person in employment the employer contravened Section 9 read
with item 23(1) of Schedule 6 to the Constitution
of The Republic Of
South Africa,1996”
[20]
Mr Reddy's complaint stems from being placed on early retirement due
to ill health. This he contends was done because
of his disability.
The genesis of his complaint therefore is SARS' policy relating to
placement of SAR'S employees on early retirement
due to ill health.
What however does not come out from Mr Reddy's complaint is that such
policy is unfairly discriminatory, in
that it differentiates between
people.
[21]
In essence, the sum total of Mr Reddy's complaint is that he has not
been fairly treated during
the process of his placement on early
retirement due to ill health, and, as such, was unfairly made to go
on early retirement.
This is not a case for unfair discrimination
that is envisaged in the Equality Act that ought to be entertained by
this court.
A remedy for Mr Reddy in such circumstances, if properly
formulated, lies with the CCMA or the Labour Court.
[22]
For the reasons I have advanced here above, Mr Reddy's comp lain t is
dismissed.
There is
no
order
as
to
costs.
E.M
KUBUSHI
JUDGE
OF THE EQUALITY COURT
GAUTENG
DIVISION, PRETORIA
Appearance
:
Applicant
:SELFREPRESENTED
Respondent
: UNREPRESENTED
Date
of hearing
: 12 May 2021
Date
of judgment
: 12 July 2021
[1]
[2014] ZACC 19.
[2]
Section 9 of the Equality Act.
[3]
Subject to section 6, no person may unfairly discriminate against
any person on the grounds of
disability.
[4]
"Discrimination” Means any act or omission, including a
policy, law, rule, practice, condition or
Situation
which directly or indirectly -
(a)
Imposes burdens, obligations or disadvantages on; or
(b)
Withholds benefits, opportunities or advantages from
any
person on one or more or the prohibited grounds.
[5]
"Prohibited grounds" are
(a)
Race, gender, sex, pregnancy. marital status, ethnic or sociaI
origin, colour,.sexual orientatlon, age, disability,
religion,
conscience, belief, culture, language and birth; or ..
[6]
Section 9.