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[2017] ZALAC 48
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Pharmaco Distribution (Pty) Ltd v W (JA104/2015) [2017] ZALAC 48; (2017) 38 ILJ 2496 (LAC) (4 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Reportable
Case
no: JA104/2015
In
the matter between:
PHARMACO
DISTRIBUTION (PTY)
LTD
Appellant
and
LIZE
ELIZABETH
WEIDEMAN
Respondent
Heard:
23 February 2017
Delivered:
04 July 2017
Summary:
unfair discrimination on account of disability in terms of section
187(1)(f) of the LRA – employer subjecting employee
to
psychiatric assessment subsequent to employee lodging grievances for
the late and incorrect payment of her commissions –
employee’s
refusal to submit to psychiatric testing led to her dismissal -
employer relying on a clause in the employee’s
contract to
justify the assessment. Held that
The
known fact was that employee suffers from bipolar and that it did not
affect her work performance – Section 7(1) of the
EEA prohibits
medical testing of an employee unless the legislation permits or
requires the testing or it is justifiable in light
of medical facts,
employment conditions, social policy, the fair distribution of
employee benefits or the inherent requirements
of the job
-
that
Consent is not a justification as contemplated in s7(1) of the EEA -
common cause facts reveals that none of the sales persons
was
subjected to any pre-employment medical assessments or questionnaires
relating to their ability to cope with stress on the
job. Clause 17.3
of the contract of employment is patently offensive and invasive of
the privacy rights of the employee and is
plainly inconsistent with
s7(1) (b) of the EEA. evidence reveals that employer had
discriminated against the employee because of
her bipolar disorder.
Crucially, on the employer’s primary concern was the employee’s
bipolar disorder and the perceived
dangers associated with it -no
matter the employee’s exceptional performance reviews, and no
matter the legitimacy of her
grievance, the mere fact that she
suffered from bipolar disorder was a matter of such grave concern to
the employer, that she had
to be subjected to a psychiatric
assessment - there was, as a result, a direct causal connection
between the employee’s bipolar
disorder and her dismissal.
Cross-appeal
and Compensation – Labour Court failed to take into account
that the employer manipulates the employee’s
medical condition
in order to secure her dismissal – employee suffers humiliation
as a result of the employer’s conduct
– held when
considering the appropriate award to make under s194(3) of the LRA,
the court must take into account that such
dismissals are frowned
upon and should deter employers from automatically unfairly
dismissing their employers –Labourt Court’s
award of
compensation set aside –
Damages
for
injuria
- the employee claims damages for non-patrimonial
damages for impairment of her dignity as a result of being unfairly
discriminated
against held there is in principle no difference
between her claim for compensation under s194(3) of the LRA and her
damages
claim under s50(2)(b) of the EEA for non-patrimonial loss. To
award both non-patrimonial damages and compensation to the employee
for the same wrongful conduct of the appellant would not be just and
equitable as it would amount to penalising the employer twice.
Appeal
dismissed with costs - cross-appeal partially upheld – Labour
Court’s judgment set aside as far as compensation
is concerned.
Coram:
Davis, Jappie JJA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1]
This is an appeal and cross-appeal against the judgment of the Labour
Court (Lagrange J) in terms of which it found the dismissal
of the
respondent by the appellant to constitute an automatically unfair
dismissal in terms of s187(1)(f) of the Labour Relations
Act 66 of
1995 (“the LRA”) on account of unfairly discriminating
against her, on the grounds of her disability, by
singling her out to
undergo a psychiatric assessment because she suffered from bipolar
disorder. The Labour Court also found the
dismissal to be an act of
unfair discrimination in terms of s6(1)
[1]
of the Employment Equity Act 55 of 1998 (“the EEA”). The
Labour Court ordered the appellant, in terms of s194(3)
[2]
of the LRA, to pay the respondent the sum of R222 000,00 as
compensation for her automatically unfair dismissal and the sum of
R15 000,00, in terms of s50(2)(b) of the EEA, as damages for the
unfair discrimination committed against her under the EEA.
Background
[2]
On 1 July 2008, the parties concluded a fixed-term contract of
employment in terms of which the appellant employed the respondent
as
a pharmacy sales representative in its pharmacy division.
During
December 2008, the appellant had assessed the respondent in a
performance appraisal as “
exceptional
and consistently demonstrates excellent standards in all job
requirements
”.
Subsequently,
on 16 July 2009, the parties concluded an indefinite-term contract,
in terms of which the respondent earned a monthly
basic salary of R9
650, 00 a travel allowance of R8 350,00 and a telephone allowance of
R500,00. She also earned a commission on
sales generated.
[3]
During January to October 2009, the respondent raised various queries
in relation to the calculation and late payment of her
commission. On
25 September 2009, the respondent received a sales printout
identifying the sales she had made for the quarter to
date and
reflecting her commission due. Approximately two weeks later, on 13
October 2009, she received another printout. This
printout reflected
sales figures substantially lower than the first one.
On 15
October 2009, the respondent took the issue up with Mr Roy Tindale
(“Tindale”), the appellant’s National
Sales
Manager, whom she spoke to telephonically. She pointed out the
discrepancies to him and indicated that she was prepared to
put the
calculations in writing and provide the hardcopies of the invoices.
Tindale informed her that her query “
would
not be entertained at all, even if I put it in writing
”
and that she should query the issue with Mr Robert Augustoni
(“Augustoni”), the appellant’s Chief Executive
Officer.
[4]
On 16 October 2009, the respondent made an appointment with
Augustoni’s personal assistant to meet with him, but was not
afforded a meeting.
Later,
on 20 October 2009, she prepared a report setting out how she arrived
at her sales’ figures together with supporting
documents (“the
report”), which she delivered to Augustoni’s son. On 23
October 2009, the respondent met with
Tindale at the head office,
where she handed him the report. Tindale refused to accept the report
and threatened to throw it in
the bin.
[5]
On 28 October 2009, the respondent raised a grievance. The grievance
was only considered after the respondent had sent numerous
reminders
to management to attend to it.
On
the same day, the appellant charged the respondent with
inter
alia
insolence
and insulting behaviour, wilful refusal to carry out a lawful
instruction or to perform her duties, intimidation of fellow
employees and damaging the reputation of the appellant by insisting
that it had produced incorrect figures to deprive her of commission.
[6]
The disciplinary enquiry took place on 30 October 2009 and the
respondent was found guilty as charged, and was issued with a
final
written warning. She
appealed
against the findings and her sanction, but it was never considered.
Instead, on 20 November 2009, the appellant summoned
the respondent
to its head office. She was placed on immediate suspension and issued
with a letter, dated 18 November 2009, signed
by Augustoni.
[7]
Augustoni explained,
in
the letter, that the respondent’s recent behaviour had given
rise to “
serious
concern
”
and that she had made a statement “
to
Mr Hippele and Mr Tindale to the effect that you were suffering from
bipolar depression
”.
Augustoni indicated in the letter that the respondent was concerned
about her health and its “
legitimate
and lawful interests
”
as her employer. He then instructed her, in the letter, to attend a
medical examination with a psychiatrist, Dr Liebenberg,
who would be
required to advise the appellant on “
whether
or not you are fit to deal with your tasks for the Company and
whether you can resume and attend to such tasks without there
being
any risk for yourself or the lawful and legitimate interests of your
employer
”.
Augustoni concluded the letter by warning the respondent that a
failure to attend or attendance coupled with “
sabotage
”
of the examination would “
constitute
a serious offence
”
and would be dealt with as a disciplinary infraction.
[8]
In response to the instruction to attend the medical examination, the
respondent’s attorneys addressed a letter, dated
20 November
2009, to the appellant recording that its instruction amounted to an
act of victimisation which was precipitated by
her grievance in
relation to the payment of her commission. The letter also called
upon the appellant to withdraw the instruction,
failing which the
respondent would launch an application to the Labour Court. The
appellant did not withdraw the instruction. Instead,
on 23 November
2009, Augustoni addressed a further letter to the respondent’s
attorney in which he repeated his view that
“
there have been
incidents in our company which force us as a caring and responsible
employer to insist that [the respondent] attend
the doctor’s
appointment
” and that her failure to attend “
would
constitute a very serious offence and be dealt with accordingly”
.
[9]
On the same day, the respondent’s attorneys addressed a further
letter, on her behalf, to the appellant calling upon it
to suspend
the medical examination pending finalisation of the court
application, which she intended to launch. The
respondent
also submitted a letter, from her counselling psychologist, Mr
K. Fourie (“Fourie”), to the appellant
explaining that
she suffered from bipolar disorder that was well managed as she was
in therapy with him and was medication compliant.
Fourie concluded
the letter by stating “
I
can therefore see no reason why this condition should in any
significant way have affected her ability to function effectively
in
the work environment.”
[10]
The appellant did not respond to the respondent’s letter and
simply ignored the letter of Fourie. On 24 November 2009,
the
respondent launched an urgent application in the Labour Court in
which she sought an order setting aside her suspension and
interdicting the appellant from instructing her to attend a medical
examination. The application was dismissed.
The
respondent failed to attend the medical examination scheduled for 24
November 2009 and, on 26 November 2009, the appellant charged
her
with misconduct. On 27 November 2009, the appellant considered the
respondent’s grievance and rejected it. The disciplinary
enquiry proceeded on 2 December 2009. The respondent was found guilty
and was dismissed.
Judgment
of the Labour Court
[11]
The respondent disputed the fairness of her dismissal and referred a
dispute to the Commission for Conciliation, Mediation
and Arbitration
(CCMA) on 3 December 2009. On 17 May 2010, the arbitrator ruled that
the respondent may refer the dispute to the
Labour Court as the CCMA
had no jurisdiction to determine it. The respondent referred the
dispute to the Labour Court.
[12]
The Labour Court considered the validity of clause 17.3 of her
contract of employment in light of the provisions of s7(1) of
the
EEA.
The
appellant’s case, observed the Labour Court, was essentially
“
that
the testing was justified given that [the respondent] had consented
to undergoing a medical test when reasonably required by
it, and her
behaviour coupled with the disclosure of her psychiatric condition”
.
It observed that s7(1) of that Act prohibits medical testing “
unless
”
either of the circumstances contemplated in paragraphs (a) or (b)
applies. It found that under subsection 1(b) medical testing
would
not be prohibited if “
justifiable
in
the light of medical facts, employment conditions, social policy, the
fair distribution of employee benefits or the inherent
requirements
of a job
”,
but that consent was not one of the exceptions contained in the
subsection.
On
considering the “
medical
facts
”
in s7(1)(b), the Labour Court stated that “
the
known medical facts”
were that the respondent suffered from bipolar disorder, was
undergoing regular therapy and was taking medication for her
condition.
It observed that there was also the opinion of her
psychologist that her condition should not affect her ability to
function effectively
in her work environment.
[13]
With regard to the “
employment conditions
” in
s7(1)(b) of the EEA, the Labour Court stated:
‘
[41]
Insofar as the respondent might find support in the section [i.e.
section 7(1)(b)] that ‘employment conditions’
justified
the psychiatric examination, the respondent made some attempt to try
and suggest that the working environment of Weideman
was very
pressurised and stressful. By implication, as I understand the
argument, it could not risk employing someone in
the position if
there was a question mark about their ability to remain mentally
stable to cope with the demands of the job.
However, the
balance of evidence did not support the view that conditions of work
in the job were inherently stressful, still less
that any expressions
of anger or frustration would render the person unable to perform
their duties.
[42] It should
also be mentioned that what triggered Weideman’s outburst, had
nothing to do with the performance of her duties
but arose out of a
dispute over an important aspect of her remuneration. On the
evidence presented, it seems clear that the
applicant lost her temper
on 23 October 2009 as a result of her frustrations over what she
perceived was an attempt by Pharmaco
to avoid addressing her
complaints about her commission flowing from what she believed were
erroneous sales figures attributed
to her. ….In any event,
insofar as it may be relevant, Weideman had a genuine belief that she
had been severely prejudiced
by an unwarranted revision of the sales
figures.’
[14]
The Labour Court considered the possible argument based on the
inherent requirements of the job and noted that the appellant
had
“
failed to demonstrate such a threshold health qualification
was required to perform the duties that the job entailed
”.
It therefore concluded that:
‘
I
am not persuaded that the [appellant] established that its
instruction to the [respondent] to undergo a psychiatric examination
to determine if she was fit to do her work was one that was not
prohibited in terms of Section 7 of the
Employment Equity Act, as
it
failed to establish that it met any of the exceptions to the
prohibition.’
[15]
The Labour Court held that the “
ostensible”
purpose of the examination was not to establish whether the
respondent suffered from an unknown disease that was affecting her
ability to work; on the contrary, [the respondent’s condition
was known] and it was common cause that her work performance
was not
affected.
It
found, in the circumstances, that the appellant had failed to
establish that its instruction was not prohibited and concluded
that:
‘
In
the absence of being able to establish that clause 17.3 of [the
respondent’s] contract was justifiable under one of the
exceptions to the prohibition in
section 7
of the
Employment Equity
Act, that
provision is unlawful and unenforceable.’
[16]
The Labour Court, accordingly, found that the appellant unfairly
discriminated against the respondent and that her dismissal
was
automatically unfair in terms of
s187(1)(f)
of the LRA. It also found
that the respondent had discriminated against the respondent in terms
of
s6
of the EEA. In arriving at that decision, it reasoned as
follows:
‘
It
has already been established that the instruction which Weideman was
dismissed for disobeying was an unlawful one. But in itself
that is
not sufficient to establish that her dismissal was on account of a
prohibited reason. The applicant contends that the reason
for her
dismissal was that the instruction was only issued because she
suffered from a bipolar disorder and that if that had not
been the
case she would not have been required to undergo a medical
examination and would not have been dismissed. In effect, it
was her
bipolar condition which led to her being required to undergo the
examination on pain of dismissal. That in itself was unfair
discrimination in terms of
s 6
of the [EEA]. Consequently, her
subsequent dismissal for refusing to accede to being tested for that
reason was also dismissal
for a prohibited reason in terms of
s 187
(1)(f) of the [LRA].
Augustoni
admitted that he would not have required Weideman to undergo testing
on account of the conduct for which she was disciplined
alone. The
knowledge that she was bipolar was therefore decisive. It is
noteworthy that Weideman’s performance had been rated
as
"exceptional"
; she had no history of absenteeism;
the company had not considered it necessary to subject any employees
to pre-employment medical
or psychological examinations; when
Weideman had an outburst on 23 October 2009 over her commission
dispute, none of the staff
had felt threatened by her. Consequently,
I agree with the applicant that there was no factual basis to doubt
her ability to perform
her work duties or discharge her functions.
Accordingly, the ostensible rationale advanced for the examination,
namely to determine
if she was fit to do the work, is hard to
believe. It seems more probable on the evidence that the predominant
reason she was required
to undergo the testing was because senior
management became aware of her bipolar status. Had she not suffered
from that condition,
she would consequently not have been placed in a
situation where she faced dismissal for not acceding to an
examination based solely
on her condition.
Consequently,
I'm satisfied that her dismissal in the circumstances was based on
her refusal as a person with a bipolar condition
to undergo a medical
examination, which she would not have been required to undergo, but
for the condition. The stigmatising effect
of being singled out on
the basis of an illness that she was managing, notwithstanding the
absence of any objective basis for doubting
her ability to perform,
is obvious. The act of requiring her to submit to the examination in
the circumstances was also an act
of unfair discrimination in terms
of
s 6
of the [EEA].’
The
Labour Court accordingly held that “
clause 17.3 … is
not permissible in terms of
section 7
of the
Employment Equity Act
and
can be declared null and void”
.
[17]
In relation to the claim for general damages for
injuria
, the
Labour Court held that “
though closely related
” to
the unfair discrimination, “
the two claims do not overlap
entirely
”. The unfair discrimination, he held, was the
“
greater of the two wrongs”
. He held that singling
the respondent out for medical examination on account of her bipolar
illness, despite the performance record,
“
was a stigmatising
act and was aggravated by the remark made by Tindale about her mental
stability”
. The Labour Court considered that an amount of
R15 000 was “
adequate recompense”
.
[18]
In assessing an appropriate amount of compensation for the
respondent’s automatically unfair dismissal, the Labour Court
considered that:
‘
[T]he
[respondent’s] previous length of service with the [appellant]
and the fact that even though the [appellant] ought to
have realised
the stigmatising effect of its conduct, and should have reflected on
whether its instruction was a reasonable one
in the circumstances; it
appears to have genuinely believed that the terms of the
[respondent’s] contract protected it against
any legal
challenge to the instruction it issued. I must also consider that the
[appellant] did have an early opportunity to reflect
on the
lawfulness of its actions when confronted by the [respondent’s]
original attorneys of record, but ploughed ahead with
its intended
course of action regardless. Its ostensible rationale for demanding
the [medical] examination also lacked a credible
basis for wanting to
assess her fitness to perform her duties.’
The
Labour Court found that compensation in the amount of 12 months’
salary was appropriate and that the monthly salary was
to be
calculated as R18 500, 00 being the gross remuneration excluding
commission, as it was of the view that the amount of commission
was
not proved. It, therefore, awarded the respondent the sum R222 000.00
as compensation for her automatically unfair dismissal.
[19]
The Labour Court accordingly granted the following relief:
(a)
Declaring
that clause 17.3 of the respondent’s contract of employment
with the appellant was in breach of the provisions of
s 7
of the EEA
and was accordingly of no legal force and effect;
(b)
Declaring
that the respondent had been unfairly discriminated against in terms
of
s 6
of the EEA when the appellant instructed her to undergo a
psychiatric examination;
(c)
Ordering
the appellant within 14 days of receipt of the judgment to pay the
respondent an amount of R15 000.00 as damages for unfair
discrimination committed against her in terms of
s 6
of the EEA and a
further amount of R222 000.00 as compensation for her automatically
unfair dismissal;
(d)
Costs.
The
appellant appeals against the whole of the judgment and order of the
Labour Court and the respondent cross-appeals against its
award of
compensation and damages. Both the appeal and cross-appeal are with
leave of the Labour Court.
Clause
17.3 of the contract
[20]
The issues which the Labour Court had to decide in the unfair
dismissal claim before it were correctgly outlined by it as:
‘
3.1
whether the provisions in the respondent's contract of employment
requiring her to undergo medical testing are enforceable or
void;
3.2 whether her
dismissal for failing to submit to a medical examination on the
employer's instruction was automatically unfair
in terms of
section
187
(1)(f) of the [LRA];
3.3 in the event
that her dismissal was not automatically unfair, was it substantively
or procedurally unfair.’
[21]
Clause 17.3 of the respondent’s contract of employment was
central to the first issue for determination by the Labour
Court.
Clause 17 of the contract read as follows:
‘
17.1
The nature of the Employee's job in the Company's business requires
good health and physical, as well as mental fitness.
17.2 The
Employee warrants that, at the time of signing this agreement he/she
is free from any disease or illness which is contagious
all of which
will, or may in time lead to the Employee’s in incapacity,
disability or death. Misrepresentation in this respect
will make the
contract voidable.
17.3 The
Employee will, whenever the Company deems necessary, undergo a
specialist medical examination at the expense of the Company,
by a
medical practitioner nominated and appointed by the company. The
Employee gives his/her consent to any such medical practitioner
making the results and record of any medical examination available to
the Company and to discuss same with such medical practitioner.
The
above shall include and apply to psychological evaluations.'
[22]
Section 7(1)
of the EEA prohibits medical testing of an employee
unless the legislation permits or requires the testing or it is
justifiable
in light of medical facts, employment conditions, social
policy, the fair distribution of employee benefits or the inherent
requirements
of the job. For the appellant to have succeeded on the
first issue, it had to show that clause 17(3) of the respondent’s
employment contract was consistent with
s7(1)
of the EEA. In so
doing, it had to demonstrate that its reasons for requiring the
respondent to undergo a medical examination in
terms clause 17.3 of
the contract fell within the ambit of the exceptions in
s7(1)(b)
of
the EEA. In other words, the appellant could only require the
respondent to undergo a medical examination if it was justified
on
the basis of one or more of the exceptions set out in
s 7(1)(b)
of
the EEA, namely the “medical facts, employment conditions,
social policy, the fair distribution of employee benefits or
the
inherent requirements of the job”.
[23]
The appellant, however, sought to justify its decision to require the
respondent to submit to psychiatric testing on the basis
that she had
consented to it in her contract of employment; that it had concerns
about her behaviour; and that the work performed
by her was
inherently stressful and demanded that she be “
of sound body
and mind to adequately perform her duties”.
“Consent”
is not a justification as contemplated in
s7(1)
of the EEA. It was
therefore correctly rejected by the Labour Court. The appellant’s
latter justification that the job was
“
inherently stressful
”
and that the respondent was required to be of “
sound body
and mind to adequately perform her duties
” was not borne
out by the evidence.
[24]
The evidence on record reveals quite the opposite.
It was
common cause, in this regard, that the appellant had never required
any of the sales staff to undergo a medical examination
prior to
taking up employment. Of the three witnesses who testified at the
trial on the question of the “
inherently
stressful
”
nature of the job performed by a salesperson, only the respondent and
Ms Chater (“Chater”) were salespersons.
Both testified
that they did not find the work itself to be particularly stressful.
Chater, however, stated that she found the
“
environment
that the companies put you under with the budgets and meeting the
targets
”
to be stressful, but not the job content.
Augustoni
was the third witness to testify on this aspect. Since he was the CEO
of the appellant and not a salesperson, his testimony
on this aspect
had no probative value. Importantly, in this regard, he made no
reference in his testimony to the inherently stressful
nature of the
job, the impact that it had on the ability of the sales persons, and
the measures taken to deal with such stress.
On the contrary, it was
common cause that none of the sales persons were subjected to any
pre-employment medical assessments or
questionnaires relating to
their ability to cope with stress on the job. The Labour Court’s
rejection of Augustoni’s
evidence on this aspect is therefore
not open to question.
[25]
The appellant contended that the Labour Court exceeded the bounds in
striking down clause 17.3 of the contract of employment
as the clause
may be permissible in other circumstances. It, however, failed to
lead evidence at the trial which revealed this
to be the case. Nor
was this foreshadowed on the pleadings. It is impermissible, in the
circumstances, for the appellant to appeal
against some undisclosed
defence. The dispute is between the parties alone and the judgment is
binding only upon them. Therefore,
should the appellant wish to
enforce the provisions of clause 17.3 against another employee, it
would not be bound by the ruling
of this Court in these proceedings.
[26]
Clause 17.3 of the contract of employment is patently offensive and
invasive of the privacy rights of the respondent in its
overbreadth,
and is plainly inconsistent with
s7(1)
(b) of the EEA. As pointed out
by the Labour Court:
‘
Amongst
other things [ Augustoni] believed that the clause would permit the
company to ask a female employee who was sluggish at
a particular
point of the month, to subject herself to the company’s
appointed gynaecologist, or to request an employee who
has lesions on
their body to submit to a blood test.’
In
the premises, the Labour Court correctly considered clause 17.3 of
the contract of employment in the context of
s7(1)
of the EEA and
found that “consent” inherent in clause 17.3 of the
contract of employment was not among the exceptions
contemplated in
the section. Hence, its declaratory order that clause 17.3 of the
contract of employment is of no legal force and
effect is undeniably
correct.
Hearsay
evidence
[27]
A further contention raised by the appellant is that the Labour Court
erred by accepting the hearsay evidence contained in
the letter from
Fourie (the respondent’s counselling psychologist), explaining
that she suffered from bipolar disorder that
was well managed with
therapy and medication and, in his opinion, should not in any
significant way affect her ability to function
effectively at work.
There is no merit in this argument, as there is nothing in the
reasoning of the Labour Court to suggest that
it accepted the opinion
of Fourie. It is clear from the judgment, that the Labour Court in
considering
s7(1)(b)
of the EEA, which prohibits medical testing
unless it is justifiable
inter
alias
“
in
light of the medical facts
”,
noted that “the known medical facts” were that the
respondent suffered from bipolar disorder, for which she
was
undergoing regular treatment and medication and “
there
was
also
the
opinion of her psychologist
”.
The Labour did not state that it accepted that opinion, only that the
opinion was one of the known facts.
As
rightly contended for on behalf of the respondent, the letter from
Fourie had never been tendered for the truth of its contents,
but
rather as proof of the unreasonable stance adopted by the appellant
in insisting, without justification in terms of
s7(1)(b)
of the EEA,
that the respondent submits to a psychiatric assessment by a
psychiatrist of its choice.
[28]
It was never in dispute that the respondent suffered from bipolar
disorder. However, what was in dispute was whether the appellant
was
entitled to demand that the respondent submits herself to a
psychiatric assessment by a psychiatrist of its choice. The appellant
bore the
onus
to justify its invocation of clause 17.3 of the
contract of employment in the circumstances, and that it had not
discriminated
against the respondent by singling her out on account
of her bipolar disorder for a medical examination. If expert evidence
was
required, it was for the appellant (and not the respondent) to
lead this evidence to demonstrate that there was a reasonable basis
to its demands.
[29]
In my view, the respondent’s alleged behaviour did not call for
psychiatric intervention. Even on the version of the
appellant’s
witnesses, the respondent’s behaviour was simply that of an
aggrieved person whose complaints were persistently
ignored by
management. It was common cause, in this regard, that the respondent
had been complaining for some time about the incorrect
calculation
and late payment of her commissions. Augustoni, the appellant’s
CEO, felt constrained to concede that the respondent
would have a
legitimate grievance if that were the case, and would be entitled to
be upset in the circumstances.
In any
case, the evidence of the appellant’s witnesses failed to
establish that the respondent behaved in an irrational and
aggressive
manner.
Naidoo
testified that the respondent used no crude language and did not
“
call
her names
”.
She did not fear for her safety or feel threatened and did not
consider the matter to be sufficiently serious to put it
in writing
or lodge a complaint. Ms Mnyengeza, who was present during the
exchange between Naidoo and the respondent, also testified
that
neither she nor Naidoo were in any danger. In the circumstances, I
find this ground of appeal to be without merit.
The
reasons for the respondent’s dismissal
[30]
The appellant’s final ground of appeal is that the Labour Court
erred in finding that the appellant singled the respondent
out for
medical testing merely because she was suffering from bipolar
disorder. The essence of this ground of appeal is that the
respondent
failed to establish a causal nexus between her bipolar condition and
the dismissal. I consider this ground of appeal
to lack substance.
The record of evidence is replete with references to Augustoni’s
testimony that it was because of his
knowledge of the respondent’s
bipolar condition that he considered it necessary to subject her to a
medical examination.
[31]
Relying upon the test laid down in
Kroukam,
[3]
the
Labour Court concluded that the respondent’s dismissal “
in
the circumstances was based on her refusal as [a] person with a
bi-polar condition to undergo a medical examination, which she
would
not have been required to undergo, but for her condition
”.
The
Labour Court did not err in arriving at this conclusion.
In
Kroukam,
this Court held that:
‘
[28]
In my view,
s 187
imposes an evidential burden upon the employee to
produce evidence which is sufficient to raise a credible possibility
that an
automatically unfair dismissal has taken place. It then
behoves the employer to prove to the contrary, that is to produce
evidence
to show that the reason for the dismissal did not fall
within the circumstances envisaged in
s 187
for constituting an
automatically unfair dismissal.’
[32]
It is manifestly clear from the record of evidence that the appellant
had discriminated against the respondent because of her
bipolar
disorder. Crucially, on the appellant’s version, its primary
concern was the respondent’s bipolar disorder
and the perceived
dangers associated with it. On this account, no matter her
exceptional performance reviews, and no matter the
legitimacy of her
grievance, the mere fact that she suffered from bipolar disorder was
a matter of such grave concern to the appellant,
that she had to be
subjected to a psychiatric assessment. So grave did the appellant
consider her condition to be, that her refusal
to undergo a
psychiatric assessment resulted in her dismissal. There was, as a
result, a direct causal connection between the respondent’s
bipolar disorder and her dismissal. Simply put, but for her medical
condition, the appellant would not have dismissed her.
[33]
However, as a last resort, the appellant sought to contend that its
real concern related to the respondent’s fitness
to perform her
duties rather than her medical condition. “Motive” is
central to this contention. However, as was held
by this Court in
Department
of Correctional Services and Another v Police & Prisons Civil
Rights Union and Others
“motive” is irrelevant to a determination of whether
there has been discrimination:
[4]
‘
The
respondents have rightly submitted that the explanation for the
dismissal tendered or suggested by the employer (or for that
matter
the employee) can never without more simply be accepted as the reason
postulated by the section. The reason contemplated
and to be sought
by the court is the objective reason in a causative sense. The court
must enquire into the objective causative
factors which brought about
the dismissal, and should not restrict the enquiry to a subjective
reason, in the sense of an explanation
from one or other of the
parties. Counsel for the respondents has referred to various UK
authorities directly on point. In
R v
Birmingham City Council, ex parte Equal Opportunities Commission
,
the issue was whether certain criteria which were applied by the
council for entry to single sex grammar schools were discriminatory.
Because there were more places for boys in such schools than girls,
the girls had to do better in the entrance exam in order to
secure a
place. Although the council's motive in setting the entrance criteria
was laudatory (it was trying to ensure entry on
merit), the House of
Lords held that the disparity constituted unlawful discrimination on
the grounds of sex, contrary to the Sex
Discrimination Act 1975. The
court observed:
“
There
is discrimination under the statute if there is less favourable
treatment on the ground of sex, in order words if the relevant
girl
or girls would have received the same treatment as the boys but for
their sex. The intention or motive of the defendant to
discriminate,
although it may be relevant insofar as remedies are concerned ... is
not a necessary condition of liability; it is
perfectly possible to
envisage cases where the defendant had no such motive, and yet did in
fact discriminate on the ground of
sex. Indeed ... if the Council's
submission were correct it would be a good defence for an employer to
show that he discriminated
against women not because he intended to
do so but (for example) because of customer preference, or to save
money, or even to avoid
controversy. In the present case, whatever
may have been the intention or motive of the Council, nevertheless it
is because of
their sex that the girls in question receive less
favourable treatment than the boys, and so are the subject of
discrimination
under the Act of 1975.”
In other words,
discrimination is not saved by the fact that a person acted from a
benign motive. Usually motive and intention are
irrelevant to the
determination of discrimination because that is considered by asking
the simple question: would the complainant
have received the same
treatment from the defendant or respondent but for his or her gender,
religion, culture, etc.?’
[34]
Thus, no matter the appellant’s “motive”, it is
abundantly clear from the evidence that but for the respondent’s
bipolar condition, she would not have been instructed by the
appellant to undergo a psychiatric assessment -
and
would not have been dismissed for refusing to do so. This, in my
view, amounts to unfair discrimination on the grounds of disability
as contemplated in both s187(1)(f) of the LRA and s6 of the EEA. For
these reasons, I am satisfied that the Labour Court found
correctly
that the respondent’s dismissal was automatically unfair on the
basis that she was unfairly discriminated against
by the appellant on
the ground of her bipolar disorder, which is a disability as
contemplated in s187(1) f) of the LRA and s6 of
the EEA. But for her
disorder, the appellant would not have singled her out to undergo a
psychiatric assessment. In the result,
the decision of the Labour
Court on the merits must stand.
The
Cross-Appeal
[35]
The respondent cross-appeals against the Labour Court’s award
of compensation and damages. The thrust of her contention
is that the
Labour Court erred: (a) in failing to find that she proved that she
had earned on average R22 500.00 per month inclusive
of commission;
(b) in not awarding her compensation, for the automatically unfair
dismissal, in the amount that she would have
earned over a period of
24 months’ (as opposed to 12 months’) prior to her
dismissal; (c) in awarding her general damages
in the amount of R15
000.00 instead of R100 000.00 for the unfair discrimination in
terms of s6 of the EEA.
[36]
Section 194(3) of the LRA confers a wide discretion upon the Labour
Court to award compensation to an employee whose dismissal
was found
to be automatically unfair. The compensation awarded “must be
just and equitable” in all the circumstances,
but not more than
the equivalent of 24 months’ remuneration calculated at the
employee’s rate of remuneration on the
date of dismissal. The
power of a court to interfere with the compensation awarded by the
Labour Court on appeal is circumscribed
and can only be interfered
with on the narrow grounds that the judge acted capriciously, or upon
the wrong principle, or with bias,
or that the discretion exercised
was not based on proper reasons or that the decision-maker adopted an
incorrect approach. It follows
that this Court has no power to
interfere with the quantum of compensation awarded by the Labour
Court unless it is established
that one or more of the grounds listed
above is present.
[5]
Compensation
for automatically unfair dismissal
[37]
The purpose of awarding a dismissed employee compensation in terms of
s187(1) (f) of the LRA is for the restitution of his
or her dignity
as a result of being unfairly discriminated against by the employer.
In determining what is just and equitable compensation
in the
circumstances where an employee has been unfairly discriminated
against on one or more of the prohibited grounds listed
in s187(1)(f)
of the LRA, the court must have regard to,
inter
alia
,
the nature and seriousness of the injuria; the circumstances in which
the infringement took place; the behaviour of the employer;
the
extent of the employee’s humiliation or distress; the abuse of
the relationship between the parties; and the attitude
of the
employer after the injuria took place. These factors are by no means
exhaustive.
[6]
[38]
The Labour Court awarded the respondent compensation in the amount of
R220 000,00 as it found this to be what the respondent
had earned
over a 12-month period in the appellant’s employ prior to her
dismissal. The Labour Court clearly used the
respondent’s
remuneration as a basis for quantifying the compensation award. It,
however, erred in doing so as s193(4) of
the LRA does not oblige a
court to determine compensation based on the dismissed employees’
remuneration prior to her dismissal;
it merely employs remuneration
“as a means of capping the amount of the award” at 24
months’ remuneration
[7]
.
As such, this provides sufficient grounds to determine the
appropriate amount of compensation to be awarded to the respondent
on
appeal.
[39]
In determining the quantum of compensation to be awarded to the
respondent, under s194(3) of the LRA, the Labour Court took
into
account the respondent’s previous length of service, the
humiliation that she suffered at the conduct of the appellant,
and
that even though the appellant should have recognised the
stigmatising effect of its conduct it “
genuinely
believed that the terms of the applicant’s contract protected
it against any legal challenge to the instruction
at issue”
.
In
addition, it considered that although the appellant had an
opportunity to reflect upon its actions, it had failed to do so and
that its rationale for requiring the respondent to submit to a
psychiatric examination “
lacked
a credible basis for wanting to assess her fitness to perform her
duties”
.
[40]
What the Labour Court, in my view, failed to take into account is
that the respondent had performed at a superior level for
the extent
of her employment with the appellant. She had enjoyed her work, was
brilliant at it, and interacted well with other
members of staff. The
appellant then used her bipolar condition as a means to intimidate
her into submitting to its demands insofar
as her grievance relating
to her commission was concerned.
[41]
A further aspect that the Labour Court ought to have taken into
account, is the objective of deterrence inherent in s194(3)
of the
LRA. The Legislature has considered it appropriate to cap the amount
of compensation that a court may in its discretion
award, in terms of
s194(3) of the LRA to no more than the employee’s remuneration
for 24 months’ prior to her dismissal.
This is twice the
maximum amount that a court may award to an employee, in terms s
194(1) of the LRA, who is unfairly dismissed
for misconduct or
incapacity or the employer’s operational requirements. Whilst
s194(3) of the LRA does not make it mandatory
for a court to award
such an employee double the compensation that it would award for an
ordinary unfair dismissal, the objective
of deterrence is inherent in
the provision. In other words, when considering the appropriate award
to make under s194(3) of the
LRA, “
the
court must take into account that such dismissals are frowned upon
and should deter employers from automatically unfairly dismissing
their employers.”
[8]
This the Labour Court failed to do.
[42]
The Labour Court, in my view, also failed to take it into account
that the appellant clearly tried to manipulate the respondent’s
medical condition in order to secure her dismissal. During the course
of a meeting with the respondent, Tindale enquired disparagingly
of
her whether she was “still on her medication” and later
informed Chater that she (the respondent) was “mentally
instable”. In the termination letter, Augustoni stated that the
company “also has rights, including the rights that
its
employees and clients are protected and safe at all times”,
implying that she posed a threat to the employees and customers
of
the company.
[43]
The approach adopted by the appellant was insulting, degrading and
humiliating. Even after the dismissal, the appellant did
not appear
to appreciate the offensiveness of its conduct in invoking a clause,
in the respondent’s employment contract,
which it had no real
interest in. I have no doubt that if it did, it would have insisted
that every employee in sales undergo a
medical examination before
taking up employment. The appellant’s failure to recognise its
disgraceful conduct was, moreover,
borne out by Augustoni’s
belief, which was apparent from his testimony in the trial, that he
was entitled to ask an employee
who had lesions on his face to submit
to a blood test or ask a female employee who appeared sluggish to
submit to the company’s
gynaecologist for assessment.
[44]
For these reasons, I consider it to be just and equitable to award
the respondent the amount of R285 000,00 as compensation
for her
automatically unfair dismissal in terms of s187(1)(f) of the LRA.
Contrary to the erroneous finding of the Labour Court,
it is clear on
the evidence that the respondent had in fact proved that she earned
an average monthly commission of R4000.00 in
addition to her monthly
salary of R18 500,00, which added together yield a monthly income of
R22 500,00, an annual income of R270
000,00, and an income of R540
000,00 over two years. Accordingly, the compensation award which I
consider appropriate does not
exceed the cap in s193(4) of the LRA.
The
award of damages for
injuria
[45]
Turning to the respondent’s claim for general damages, the
Labour Court awarded her R15 000.00 on the basis that
the
appellant’s conduct in singling her out for a psychiatric
examination on account of her bipolar disorder was a stigmatising
act, which was aggravated by Tindale’s remark to the effect
that she was mentally instable. Although the respondent sought
an
order for general damages in the amount of R100 000.00, the Labour
Court found that she had not motivated such an award but,
nonetheless, awarded her a solatium in the sum of R15000,00 for
impairment of dignity.
[46]
The respondent contends that the Labour Court erred in only awarding
her a solatium of R15000,00 since a deliberate aggression
upon her
personal dignity is not a trivial matter and warrants a much graver
award. It important to remain mindful that the purpose
of the
compensation which the Labour Court awarded to the respondent under
s194(3) of the LRA was for impairment of her dignity
arising from the
automatically unfair dismissal on account of being unfairly
discriminated against on the grounds of her bipolar
disorder, which
is a disability. The damages which the respondent sought against the
appellant, in terms of s50(2)(b) of the EEA,
was also for impairment
of her dignity arising from the self-same act of unfair
discrimination against her on the grounds of her
disability. The
respondent’s dismissal was, therefore, also an act of
discrimination as contemplated under s6 of the EEA.
In the
circumstances, the wrongful conduct of the appellant had to be viewed
as a “singe wrongful act”.
[47]
In
ARB
v Electrical Wholesalers (Pty) Ltd v Hibbert
,
[9]
which concerned a matter where the employee’s dismissal, under
s187(1)(f) of the LRA, on the grounds of his age was also
an act of
unfair discrimination under s6 of the EEA, this Court had to consider
whether he was entitled to claim both under the
LRA and the EEA in a
single action, or whether he was entitled to separate remedies under
both Acts for what was effectively a
single wrongful act by the
employer. The Court found that there is no bar for an employee, in a
single action, to claim: (a) “compensation”
for an
automatically unfair dismissal as a result of unfair discrimination
under the LRA, and (b) “compensation” for
unfair
discrimination under the EEA. The Court, in addition, held that the
meaning ascribed to compensation under the LRA is the
same as would
apply to the concept of compensation under the EEA and that, in so
far as an employee may have suffered a loss as
a result of being
discriminated against, he is also entitled to claim damages under the
EEA as the EEA provides for an employee
to claim both compensation
and damages. However, the Court cautioned that:
[10]
‘…
where
claims are made both in terms of the LRA and the EEA and the court is
satisfied that the dismissal was based on unfair discrimination
as
provided for in the LRA and the employee was unfairly discriminated
against in terms of the EEA, the court must ensure that
the employer
is not penalised twice for the same wrong. In seeking to determine
compensation under the LRA and the EEA, the court
must not consider
awarding separate amounts as compensation but consider what is just
and equitable compensation that the employer
should be ordered to pay
the employee for the humiliation he/she suffered in having his/her
dignity impaired. The employees automatically
unfair dismissal is so
labelled because it is based on a violation of his constitutional
right (in this case not to be discriminated
against on the basis of
his age) and his claim under the EEA is for exactly the same wrong,
that of being discriminated on the
basis of his age.’
[48]
In my view, the same principle would apply to the situation, such as
we have here, where the employee seeks both compensation,
under
s194(3) of the LRA, for her unfair dismissal because the employer
unfairly discriminated against her on one of the grounds
contemplated
in s187(1) (f) of the LRA, and payment of general damages by the
employer in terms of s50(2)
[11]
of the EEA for impairment of dignity or injured feelings as a result
of the unfair discrimination. There is a fundamental difference
between “damages” and “compensation” as
contemplated in s50(2) of the EEA. As held by this Court
in
SA
Airways (Pty) Ltd v Janse van Vuuren and Another:
[12]
‘
In
the EEA ‘damages’ refer to an actual or potential
monetary loss (i.e. patrimonial loss) and ‘compensation’
refers to the award of an amount as a solatium (i.e. non-patrimonial
loss). It is conceivable that cases of unfair discrimination
may
involve actual (or patrimonial) loss for the claimant as well as
injured feelings (or non-patrimonial loss).
…
The
purpose of an award for damages for patrimonial loss by means of a
monetary award, is to place the claimant in the financial
position he
or she would have been in had he, or she, not been unfairly
discriminated against. This is the common purpose of an
award of
damages for patrimonial loss in terms of the South African law in
both the fields of delict and contract. In the case
of compensation
for non-patrimonial loss, the purpose is not to place the person in a
position he or she would have otherwise have
been in, but for the
unfair discrimination, since that is impossible, but to assuage by
means of monetary compensation, as far
as money can do so, the
insult, humiliation and indignity or hurt that was suffered by the
claimant as a result of the unfair discrimination.’
[49]
As indicated, the respondent’s claim for damages is for
non-patrimonial damages for impairment of dignity as a result
of
being unfairly discriminated against and not for patrimonial loss.
There is in principle no difference between her claim for
compensation under s194(3) of the LRA and her damages claim under
s50(2)(b) of the EEA for non-patrimonial loss. To award both
non-patrimonial damages and compensation to the respondent for the
same wrongful conduct of the appellant would, in my view, not
be just
and equitable as it would amount to penalising the employer twice.
This notwithstanding, the Labour Court in the exercise
of its
discretion under s50(2)(b) of the EEA awarded the respondent a
solatium in the amount of R15000,00 for impairment of her
dignity as
result of being unfairly discriminated against in terms of s6 of the
EEA, which it erroneously held to be “the
greater of the two
wrongs”. This constitutes a ground to interfere with the
damages award as an employer should not be required
to recompense an
employee twice for the same wrongful act. Accordingly, the damages
award for injuria falls to be set aside.
Costs
[50]
In view of the dismissal of the appeal and the partial success of the
cross-appeal, I consider it to be just and equitable
to order costs
in the appeal and no costs in the cross-appeal.
Order
[51]
In the result, I make the following order:
1
The
appeal is dismissed with costs.
2
The
cross-appeal is partially upheld, with no order as to costs.
3
The
award ordering the appellant to pay the respondent R15000,00 as
general damages for the unfair discrimination committed in terms
of
s6
of the
Employment Equity Act is
set aside.
4
The
award ordering the appellant to pay the respondent R220 000,00 in
compensation for her unfair dismissal in terms of
s187(1)(f)
of the
Labour Relations Act is
set aside and replaced with the following
order:
‘
The
appellant is ordered to pay the respondent R285 000,00 as
compensation for her automatically unfair dismissal in terms of
s187(1)(f)
of the
Labour Relations Act.’
>_____________________
F
Kathree-Setiloane AJA
D
Davis and A Jappie JJA concurring
APPEARANCES:
FOR
THE APPELLANT: BL Roode
Instructed
by Friedland Hart Solomon & Nicholson Attorneys
THE
RESPONDENT: G Hulley SC
Instructed
by JD Verster Attorneys
[1]
Section
6(1)
of the EEA provides:
‘
No person
may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one
or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour,
sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language and birth’.
[2]
Section
194(3)
of the LRA provides:
‘
The
compensation awarded to an employee whose dismissal is automatically
unfair must be just and equitable in all the circumstances,
but not
more than the equivalent of 24 months’ remuneration calculated
at the employee’s rate of remuneration on
the date of
dismissal.’
[3]
Kroukam v. SA Airlink (Pty)
Ltd
(2005) 26 ILJ 2153
(LC), at 2184 and 2206.
[4]
(2011) 32 ILJ 2629 (LAC) at paras 34-35.
[5]
Kukard v
GKD Delkor (Pty) Ltd
(2015)
36 ILJ 640 (LAC) at para 35
.
[6]
Minister
of Justice & Constitutional Development and Another v Tshishonga
(2009)
30 ILJ 1799 (LAC) (
Tshishonga
)
at para 18.
[7]
Tshishonga
at para 15
[8]
De Beer
v SA Export Connection CC trading as Global Paws
(2008) 29
ILJ 347 (LC) at para 53.
[9]
(2015) 36
ILJ 2989 (LAC) (
ARB
)
at para 29.
[10]
ARB
at para 30.
[11]
Section
50(2)
of the EEA provides:
‘
If the
Labour Court decides that an employee has been unfairly
discriminated against, the Court may make any appropriate order
that
is just and equitable in the circumstances, including
-
(a)
payment of compensation by the employer to
that employee;
(b)
payment of damages to the employer to that
employee.’
[12]
(2014) 35
ILJ 2774 (LAC) at paras 78-80.