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[2020] ZALAC 9
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City of Cape Town v South African Municipal Workers Unions obo Damons (CA01/2019) [2020] ZALAC 9; (2020) 41 (ILJ) 1893 (LAC); [2020] 9 BLLR 875 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: CA01/2019
In the matter between:
CITY OF CAPE
TOWN
Appellant
and
SOUTH AFRICAN
MUNICIPAL WORKERS UNIONS
Obo A
DAMONS
Respondent
Heard:
27 February 2020
Delivered:
18 May 2020
Summary: Unfair
discrimination based on disability – policy setting out
requirements for advancement not discriminatory when
disabled
employee not capable of meeting the inherent requirements of the job.
Coram: Davis and
Sutherland JJA and Murphy AJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
DAVIS JA
Introduction
[1]
This case concerns whether an employee who
suffers a disability was subjected to unfair discrimination, whether
direct or indirect,
as a result of an employment policy or practice
which was in breach of s 6 (1) of the Employment Equity Act 55 of
1998 (‘EEA’).
The facts relating to the dispute are
in the main common cause. Mr Adam Damons, who is represented by
respondent, was employed
by appellant as a firefighter on 1 February
2001. During 2010, he suffered a permanent injury while on duty. The
injury constitutes
a disability for the purposes of the EEA, in that
it is a long terms physical impairment which resulted in his
inability to perform
the duties of an active firefighter.
[2]
On 23 January 2013, Damons was accommodated
by way of being placed in an alternative post because of his
disability. He was transferred
to a position in the Finance and
Billing section in Goodwood, Western Cape. Thereafter, he was placed
in a position which he still
occupies, in the Fire and Life Safety
Education Section in Bellville. His current position does not require
any intensive and physical
exercise. His obligations are
administrative and educational. Notwithstanding the position into
which he was posted after his disability,
he has continued to retain
the designation of firefighter and is paid at the appropriate salary
level for a firefighter, including
a 22.8% standby allowance. It is
common cause that he is no longer able to perform the core functions
of a firefighter in that,
owing to his disability, he cannot perform
the physical activity associated therewith.
[3]
On 1 April 2009, appellant published the
City’s Fire and Rescue Advancement Policy (‘the Policy’).
It applied
to the advancement of permanent staff members actively
involved with operational firefighting as well as rescue activities
and
any other functions delegated in terms of the Fire Brigade
Services Act which include candidates from Learner Firefighter to
Firefighter
and to Senior Firefighter.
[4]
In order to be advanced from the rank of
Firefighter to that of Senior Firefighter, the Policy requires:
1.
The recommendation of the Chief Fire
Officer; and the approval from the Director Emergency Services
2.
four years of continuous firefighting
experience;
3.
an accredited firefighter to SAESI
certificate;
4.
an accredited HAZMAT Operations
certificate;
5.
a basic ambulance service certificate;
6.
a valid Code C 1 drivers licence with PrDP
7.
C 1 response driver and pump operator;
8.
successfully undergone a practical
(physical) assessment as per service order – 6 NO2.
[5]
According to appellant, Damons is unable to
complete the practical assessment as a result of his disability. He
is also unable to
meet the inherent requirements of a firefighter.
[6]
Damons claimed that the policy precluded
him from advancing to the position of Senior Firefighter. Therefore,
he contended that
the Policy and its implementation constituted an
act of unfair discrimination in breach of the EEA. Accordingly, he
approached
the court
a quo
for relief.
[7]
In finding in favour of respondent and
therefore Damons, Rabkin-Naicker J, sitting in the court
a
quo,
rejected the argument of
appellant, based on ‘the inherent requirement of the job’,
namely that Damons was unable to
continue as an active firefighter.
In the view of the learned judge, the fact that appellant had decided
to continue to employ
Damons in the Fire and Rescue Services, albeit
in a position that did not require active fighting, undermined its
argument. In
the view of the learned judge, the way in which
appellant had applied the policy to Damons prevented him from
advancement as a
result of his disability and its conduct amounted to
an act of unfair discrimination.
The appeal
[8]
On appeal, counsel for appellant emphasised
that central to appellant’s statement of defence from the
outset was the inherent
requirement of the job of a firefighter. In
this connection, he referred to the statement of defence where the
following appears:
‘
The
job purposes of a Senior Firefighter is described in the Job
Description Form as “perform[ing] a variety of task associated
with responding to and dealing with fires and emergency situations,
supervisor of junior ranks, rendering basic medical care and
participating in fire safety work and training exercises as well as
upholding station and equipment maintenance to ensure the delivery
of
effective and efficient emergency services in order to protect lives
and property of the citizens of Cape Town in accordance
with the Fire
Brigade Service Act”.
…
In
order to ensure that all firefighters are physically fit, they must
successfully complete an annual physical fitness assessment
and where
required routine physical drills. The applicant is not physically fit
and able to perform the physical requirements of
a firefighter. He
accordingly does not meet the inherent requirements of a firefighter
and senior firefighter
.’
[9]
To the extent that there was any doubt that
this was appellant’s case, the pre-trial minute records as
follows:
‘
Since
the inception of the Policy, no firefighter has been advanced without
having successfully completed the practical assessment
referred to in
sub paragraph 11.8 above.
The practical assessment
requires a firefighter to present theoretical knowledge in a lecture
and to be able to demonstrate the
application of his or her
theoretical knowledge physically.
Damons is unable to
complete the practical assessment due to his disability. He is also
unable to meet the alleged inherent requirements
of a firefighter.’
[10]
It is also recorded in this Minute that one
of the issues which the court
a quo
was required to determine was ‘whether the inherent requirement
for physical fitness for a firefighter precludes his advance
to the
position of Senior Firefighter and further ‘whether the Policy
constitutes justifiable and unfair discrimination in
as much as some
distinguishes between persons on the basis of the inherent
requirement of a job.’
[11]
In the evidence of Mr Ian Schentler, the
Chief Fire Officer of appellant, which evidence was not contested,
the following was stated
with regard to the requirements for
advancement:
‘
It’s
extremely important in terms of being able to physically carry out
the operations and being able to master the types
of equipment and to
be operationally be prepared through those three levels because the
percentage of time spent doing those activities
is the majority of
the time spent, in terms of percentagewise it would be between 80 and
90% of the time you would be doing those
physical activities with
that type of equipment on a daily basis
.’
[12]
Mr Schentler also informed the court about
the background to the unfortunate accident suffered by Mr Damons and
the implications
thereof:
‘
Mr
Damons joined the service around 2001 and was an operational
firefighter and around 2010 he suffered an injury on duty which
he
was transferred from the station at which he suffered the injury to
another fire station that was Milnerton to Brackenfell Fire
Station
and as a result of his injury he went through an incapacity process
as he was … he indicated and he was unable to
do the
operational aspects of the firefighters duties and though his
incapacities ranged between 2011 through to if I recall the
final
incapacity on the … between 2013 where he was first placed at
finance and billing and then after which he was placed
in the Fire
and Life Safety Education section and he has been in the Fire and
Life Safety Education section since 2013.’
[13]
It is clear from this evidence that
appellant raised the defence of the inherent requirements of the job
in respect of the possible
advancement of Damons to the position of
Senior Firefighter. Furthermore, since 2009, that is before Mr
Damons’ unfortunate
accident had produced the Policy, that is
on 1 April 2009. The Policy contained a specific requirement that
before a Firefighter
could be promoted to a Senior Firefighter there
was a need to undergo a practical physical assessment which Mr Damons
could not
pass, owing to his disability.
Inherent requirement
of a job
[14]
In
Imatu and
another v City of Cape Town
(2005) 26
ILJ 1404 (LC), the Labour Court, in dealing with the duties of a
Firefighter, accepted that physical fitness was an inherent
requirement for the job and further said at para 17 of its judgment
‘it was accepted by all the witnesses that Murdock had
the
necessary state of physical fitness to perform the task of the job’.
In a different context, but nonetheless relevant
to the present
dispute, this Court in the
TDF Network
Africa (Pty) Ltd v Faris
[2019] 2 BLLR
127
(LAC) at para 37, in dealing with whether a requirement is
inherent or incapable in the performance of a job, said:
‘
[
T]he
requirement must be rationally connected to the performance of the
job. This means that the requirement should have been
adapted
in a genuine and good faith belief that it was necessary to the
fulfilment of a legitimate work – related purpose
and must be
reasonably necessary to the accomplishment of that purpose
.’
[15]
The court
a
quo
correctly noted that appellant,
following Mr Damons’ disability, engaged in a ‘painstaking
series of incapacity investigations’
and ultimately placed him
in position that did not require active firefighting. It is difficult
to see how this conclusion can
justify the further one reached by the
court
a quo,
namely that Damons’ disability which prevented him from being
advanced amounted to unfair discrimination. To the extent that
there
is a differentiation between Damons and active firefighters, who are
considered for promotion, this is justified both by
the rational
requirements contained in the Policy and by the inherent requirements
for the position of a Senior Firefighter. In
this connection,
although again in a different context, the following
dictum
of this Court in
South African Airways
(Pty) Ltd v GJJVV
[2014] 8 BLLR 748
(LAC) at para 54 is relevant:
‘
The
contention on behalf of the appellant that the age of a pilot was an
inherent requirement of the work of a pilot was not convincing
at
all.
It is so that if the
appellant had established as a fact that there first respondent had
been discriminated against on the basis
of his age, because age was
an inherent requirement of the job of a pilot it might well have
discharged its onus, because in terms
of s 6 (2) (b) of the EEA it is
not unfair discrimination to ‘distinguish, exclude or prefer
any person on the basis of an
inherent requirement of a job.’
However, in this case, there was no evidence by the appellant that
age was an inherent
requirement of the job of a pilot…’
.
(my emphasis)
[16]
Significantly, Item 6.5.1 (b) of the Code
of Good Practice and Employment of Persons with Disabilities
(Government Gazette 9 November
2015) provides that ‘employers
should reasonably accommodate the needs of persons 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.’
[17]
Item 7.5.1 (b) of this Code then provides
‘that an employer may not retain employees who become disabled,
on less favourable
terms and conditions than employees doing the same
work, for reasons connected with the disability.’
[18]
These provisions indicate that a disabled
employee cannot be discriminated against other employees who do the
same work and, to
that specific extent that the doctrine of
reasonable accommodation applies. A policy must be designed to reduce
the impact of the
impairment of the person’s capacity to fill
the essential functions of the job. But in this case, it is not
possible for
Damons to perform the essential requirements of an
active firefighter nor could it possibly be in the public interest to
have firefighters
who are not capable of dealing with the outbreak of
fires which, in the area of jurisdiction of the appellant, are
notoriously
frequent.
[19]
In my view, there was no basis to conclude
that either the contents of the Policy or its application to the
present dispute constituted
unfair discrimination in terms of s 6(1)
of the EEA.
[20]
Given the nature of this case and the
implications for the EEA it would not be appropriate to make an
adverse costs order.
[21]
For all of these reasons, the following
order is made:
1.
The appeal is upheld.
2.
The decision of the Labour Court of 20
April 2018 is set aside and replaced with the following:
‘
The
application is dismissed.’
____________
Davis JA
Sutherland
JA and Murphy AJA concur.
APPEARANCES:
FOR THE APPELLANT:
FOR THE RESPONDENT: