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[2015] ZALCJHB 303
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Senekal v MEC for Education (Gauteng Province) and Another (JEQ01/2010; J1980/2005) [2015] ZALCJHB 303 (19 August 2015)
IN THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JEQ01/2010 & J1980/2005
In the matter between:
MR DIRK CORNELIUS
SENEKAL
Applicant
and
MEC FOR EDUCATION (GAUTENG
PROVINCE)
First Respondent
GAUTENG DEPARTMENT OF
EDUCATION
Second Respondent
Heard:
17, 18 & 19 November 2014
Delivered: 19 August 2015
JUDGMENT
Nkutha-Nkontwana AJ
Introduction
[1]
The
issues for determination in this matter emanate from number of
related matters involving same parties that had been consolidated
and
were dealt with simultaneously on 3 March 2014 by the honourable
LaGrange J. He undertook a very daunting task of going
through
the maze that had been concocted for almost a decade. To his credit,
he successfully managed to weed out all the matters
that had been
disposed of and to guide parties on how to proceed with matters that
are properly before this Court.
[2]
The
details of the honourable LaGrange J’s exertion are captured in
his Trial Direction Order which accordingly provides a
crucial
clarity on the ambit of the matters before this Court and I am
greatly indebted. Accordingly, in this judgement I
deal with
two matters, namely J1980/05 and JEQ01/2010.
The claim under case number J1980/05
[3]
This
matter was referred to this Court on 13 October 2005 by way of an
application seeking the following relief:
3.1
The unfreezing or reinstatement of the
Applicant’s salary with immediate effect;
3.2
An order preventing the Respondents from
committing any acts that might result in an unfair labour practice
against the Applicant
or victimisation of the Applicant;
3.3
An order preventing the Respondents from
withholding any service benefits;
3.4
An order compelling the Respondents to
attend to grievances which the Applicant claimed had been ignored for
13 months; and
3.5
An order compelling the Respondents to
respond to his claims for scares skill allowance and disability claim
under the
Employment Equity Act 55 of 1998
as amended (“
EEA
”).
[4]
This
matter was launched at the time when the Applicant was still employed
by the Second Respondent hence the nature of the relief
he sought at
that time was informed by the currency of his employment status. It
was set down before Honourable Francis J and was
postponed
sine
die
by agreement between the parties
with a view to enter into settlement discussions. It would seem that
the parties never met subsequently
and as such the issues had been
carried over as part of the scrambled litigation subsequently pursued
by the Applicant.
[5]
At
the commencement of the trial, the Applicant abandoned some of the
above claims, including a claim for damages. As a result,
the
following are the only claims that he persisted with:
5.1. Medical aid contribution;
5.2. Salary related claims (pay progression
and cash bonus); and
5.3 Promotion.
Claim under case number JEQ01/2010
[6]
This
matter was initially launched under the auspices of the Equality
Court at the Johannesburg Magistrates’ Court on 1 December
2009. Distinctive to the Applicant’s approach, even this
matter commenced as a conglomeration of different disputes
that had
been dealt with in different institutions, including an alleged
unfair discrimination and dismissal. On 28 January
2010,
Magistrate H R Viana transferred the matter to this Court. On
24 March 2010, it was set down before Honourable Van
Niekerk J, who
in turn ordered the matter be referred to the Commission for
Conciliation Mediation and Arbitration (“
CCMA
”)
for conciliation within 30 days from the date of the order in terms
of
section 10
of the EEA. Pertinently, Van Niekerk J also ordered
that should the matter remain unresolved, the Applicant would be free
to refer
the matter back to this Court for adjudication.
[7]
Indeed,
the matter was referred to the CCMA for conciliation which was held
on 15 April 2010. The outcome of that conciliation hearing
was a
settlement agreement whereby the parties agreed to refer the dispute
concerning the unfair dismissal to Education Labour
Relations Council
(“
ELRC”
)
for arbitration.
[8]
Advocate
K Tip SC (“
Tip
”)
presided over the arbitration proceedings at the ELRC. It is clear
from the arbitration ward that the Applicant attempted,
without
success, to place before the arbitrator the issues emanating from the
grievances he had launched in 2005. Tip confined
her findings to the
unfair dismissal dispute and accordingly held that she lacked
jurisdiction to deal with any issue outside the
scope set in the CCMA
settlement agreement between parties. In that regard, she states the
following:
“
I now turn to the other grievances which
Mr Senekal had taken up. One of those is his partial hearing
disability. He
produced a voucher to that effect issued by the
Pension Administration of the National Treasury. That aside, I
do not in
any way doubt the evidence that Mr Senekal gave as to the
impact of his impediment in inter alia a classroom environment.
On a balance, it appears that GDE did very little if anything to
address the problem. Whether imperfectly or not, Mr Senekal
brought it to the Department’s attention and I have empathy
with his view that the relevant officials were more inclined
to be
defensive than helpful. Nonetheless, in the context of this
dispute, the same analysis must be applied to this grievance
as to
the case of those already considered in this award. The process
for dealing with an instance of disability is a clearly
defined one.
See for instance Schedule 1 of
Employment of Educators Act, 76 of
1998
. It embodies certain rights on the part of a person who
asserts a disability. If a Department does not respond in
accordance
with the prescripts of the process, then the effected
employee can institute measures to enforce his/her rights.
There is
nothing extraordinary about this and there is no good reason
to treat Mr Senekal as though his position was unique. The real
problem arose when he decided that he would impose the solution of
withholding his services instead of taking his dispute to a
definite
outcome. As with other grievances that decision can enjoy no
approval and Mr Senekal’s prolonged absenteeism
cannot be
justified by it.”
[9]
The
Applicant brought this matter in terms of Section10 of the EEA,
alleging that the Second Respondent unfairly discriminated against
him on a ground of disability and he seeks the following relief:
9.1. The finding that he
has been unfairly discriminated against and that the Respondents be
ordered to
pay him compensation equal to 24 months remuneration;
9.3
That the Respondents be ordered to comply
with
Section 10
of the EEA and submit the Employment Equity Report to
Court within 30 days of the order;
9.4
That the Respondents be ordered to comply
with
Occupational Health and Safety Act, 35 of 1993
; and
9.5
That the Respondents pay the Applicant’s
costs.
[10]
The
above relief is predicated on the following allegations:
10.1
The Respondents failed to accept that the
Applicant’s disability is of a permanent nature;
10.2
The Respondents failed to take measures to
identify and eliminate employment barriers in the light of his
permanent disability;
10.3
The Respondents failed to consult with the
Applicant over his disability;
10.4
The Respondents failed to, or failed even
to attempt to, adapt the Applicant’s duties on account of his
disability;
10.5
The Respondents failed to consider an
alternative employment for the Applicant, taking into account his
disabilities;
10.6
The Respondents failed to pay the Applicant
the correct salary;
10.7
The Respondents failed to pay the Applicant
all service benefits, medical aid and cash back bonuses due to him;
10.8
The Respondents failed to adjust the
Applicant’s salary in accordance with 1% and one automatic pay
progression to which he
was entitled;
10.9
The Respondents failed to pay the
Applicant’s medical aid contributions for nearly two years; and
10.10
The Respondents denied the Applicant
promotion for period 2005 to 2008 which he should have received, or
failed even to consider
him for promotion during that time.
[11]
It
is clear from the above allegations that the demarcation line between
these two matters is very blurry. Regardless, that is not
an
insurmountable challenge since it would seem to me that the unfair
discrimination allegation is the main peg that hangs all
of the
Applicant’s claims.
Condonation
[12]
The
Respondents are no longer opposing the grant of condonation. On the
other hand, the Applicant is adamant that there is no need
for a
condonation application since his referral is consequent to the order
by Van Niekerk J which, in his view, gave him a right
to refer the
matter back to this Court after the CCMA conciliation.
[13]
Although
the EEA does not expressly set a time limit for the referral of
disputes for adjudication, it is trite that the 90-day
time limit set
by the LRA also applies to referrals of disputes to the this Court
under the EEA.
[1]
In
South African Transport and Allied
Workers’ Union obo Members v South African Airways (Pty) Ltd
and others,
[2]
concretising the above tenet, the LAC stated that:
“…
claims
of unfair discrimination are not to be lightly brushed aside and that
by that it does not mean that every claim must be entertained
no
matter how slender the factual basis of the grounds advanced. It is
however also important to note that the appellant is seeking
to
assert its members’ rights in terms of the EEA. The purpose of
the EEA is to achieve equity in the workplace by promoting
equal
opportunity and fair treatment in employment through the elimination
of unfair discrimination and implementing affirmative
action measures
to redress the disadvantages in employment experienced by designated
groups, in order to ensure their equitable
representation in all
occupational categories and levels in the workplace.”
[14]
It
is clear from the record that the delay was due to the referral of
the matter to the ELRC for arbitration as indicated above.
The
Applicant ought to have referred the matter within ninety (90) days
from 17 April 2010, the date of the CCMA conciliation hearing.
On 29
September 2010, the Applicant launched a review application under
JR 2478/10 challenging Tip’s arbitration award
and
subsequently incorporated all the other matters between the parties
including JEQ01/10 and J1980/05. On 28 April 2011,
honourable
Molahlehi J dismissed the review application but ordered that the
matters under JEQ01/10 and J1980/05 should be heard
separately.
[15]
The
degree of lateness is five months. It is my view that the reason for
the delay is adequately reasonable, especially given the
history of
these matters. Since the application for condonation is no
longer opposed, I do not deem it necessary to consider
the issue of
prejudice and the prospects of success.
[16]
In
the circumstances, condonation is granted for both matters.
Survey of evidence
Medical Aid Contribution
[17]
The
Applicant testified that the Second Respondent terminated his medical
aid for the period between January 2006 and September
2007. As
a result, he was deprived of medical aid benefit which he seriously
needed given his disability and at that time
he had a child in Grade
1.
[18]
During
cross-examination, he conceded that he was not a member of a Medical
Aid Scheme at that time. Also, it was the period
when he had
absented himself without authorised leave, a conduct which he was
subsequently dismissed for.
[19]
Even
though in his evidence in chief he testified that he is not
interested in any monetary relief, in re-examination he made it
clear
that he is looking for compensation simply because it was not his
fault that his medical aid benefit was terminated.
[20]
On
the other hand, it was submitted on behalf of the Respondents that
the Second Respondent was not obligated to contribute toward
the
Applicant’s medical aid since he was not a member of a Medical
Aid Scheme. Also, that the Second Respondent’s medical
aid
contribution portion had already been allocated to the Applicant’s
total package of remuneration. Therefore, the Applicant
failed to
prove that he had been discriminated against in that regard, so it
was contended.
[21]
Clearly
this claim cannot succeed solely on the basis that at that particular
time the Applicant was not a member of any Medical
Aid Scheme.
In any event, it would seem that the Applicant was not prejudiced
since the Second Respondent’s medical
aid contribution was
already incorporated in his remuneration package.
Salary related claims (cash bonus and pay progression)
[22]
The
Applicant testified that he commenced his employment with the
Respondent in 1991. At the time when his services were
terminated, he had 17 years of experience. When the Second
Respondent migrated to a new system, he lost his years of service
and
as a result he was incorrectly remunerated. However, he conceded
during cross-examination that his service was broken when
he went for
military conscription in 1992 to 1993. In 1993 to 1994 he worked at a
remedial school and in 1995 he worked at a private
school. He
resumed employment in the public sector in February 1996 until his
dismissal in December 2007. Therefore, he had
11 years of experience
when his services were terminated.
[23]
On
the issue of cash back bonus, the Applicant testified that in 2005 he
graduated with a BA degree in Education. Therefore,
the Second
Respondent treated him unfairly by refusing to increase his notch
from level Relevant Qualification Value (“REQV”)
14 to 15
in recognition of his additional qualification.
[24]
The
Respondents led evidence of Ms Bongi Memeza, a Deputy Director: Human
Resources. She testified that a cash bonus is paid
to an
educator who obtains a qualification which influences his/her REQV
status upward. In this instance, the Applicant had a four
year High
Diploma in Education prior acquiring a BA degree which is also a four
year degree. Therefore, there was no upward movement
or improvement
because both qualifications are at the same level (REQV14). To move
to REQV 15, the Applicant had to acquire a qualification
equivalent
to an Honours degree.
[25]
On
a pay progression claim, the Applicant testified that the total
amount he had been paid for pay progression was calculated
incorrectly.
He conceded that he did not have an exact figure but was
working on a ballpark figure of R60 000.00.
[26]
In
contrast, the Respondents led evidence of Mr Sashi Nangu, a Chief
Education Specialist, which was corroborated by Ms Mameza.
He
testified that pay progression is paid to employees in terms of PSCBC
Collective Agreement 2/2005. The Applicant did receive
his pay
progression automatic payment which was an amount of R47 968.50,
constituting of 1% notch progression with effect
from 1 July 2004.
However, the Respondents have since realised that the Applicant had
been short paid by an amount of R1 948.50
which has been
tendered to the Applicant.
[27]
For
the period commencing from 1 July 2005, it was Nangu’s evidence
that pay progression was paid on the basis of educator’s
performance. The Applicant did not receive any pay progression
for that year simply because he failed to meet the performance
standards. Whilst, for the year 2006 extending to 2007 the Applicant
was absent from work. The Applicant conceded that in
2005 he
failed to meet the required performance standard and for two years he
was not at work all because of his disability that
was never attended
to by the Second Respondent.
[28]
Even
though this dispute is purely about remuneration as correctly
contended by the Respondents, the Applicant also claimed that
the
Second Respondent’s conduct in withholding his cash bonus and
pay progression amount to unfair discrimination.
[29]
Nonetheless,
I find nothing arbitrary in the Second Respondent’s conduct in
relation to a cash bonus. It is clear that the
applicant was not
eligible to receive a cash bonus since his additional BA degree
qualification did not amount to upward movement.
[30]
On
the issue of pay progression, it is my view that the Applicant’s
complaint is merely about arithmetic computation, especially
for the
year in which he was eligible and had been paid. To the Respondents’
credit, there is a tender to pay the Applicant
whatever outstanding
amount due to him. However, for the period between 2005 and 2007, the
Applicant conceded that he was not eligible
for a pay progression.
[31]
I
accordingly, find that the Applicant failed to prove that he had been
unfairly discriminated in that regard.
Promotion
[32]
The
Applicant testified that he applied for two advertised positions at
Allen Glen High School in his capacity as a person with
disability
sometime in 2005. He was not shortlisted for both positions.
On 24 November 2005, he wrote a letter to the
Second Respondent
wherein he challenged its failure to shortlist him. The Provincial
Office referred the dispute to the District
Director of Johannesburg
East but to no avail.
[33]
The
Applicant testified that he was not challenging promotion as such but
he just wanted the shortlisting criteria because he was
of the view
that had he been shortlisted and appointed, those positions would
have dealt with his disability grievance, in particular
the noise and
the travelling distance.
[34]
The
Respondents, on the other hand, submitted that this issue has since
become moot subsequent to the Applicant’s dismissal
and the
fact that he was no longer interested in promotion but looking for
the shortlisting criteria (policy).
[35]
I
am not persuaded that this claim is moot. Conversely, the Applicant
takes issue with the Second Respondent’s failure to
recognise
his disability and the fact that it missed the opportunity to
reasonably accommodate him by promoting him to a high school
environment. Accordingly, my finding on this claim is deferred to the
discussion of unfair discrimination heading underneath.
Employment Equity Plan and Reports
[36]
In
this claim, the Applicant seeks an order compelling the Respondents
to submit their employment Equity Plan and Reports to the
Court in
order to show whether or not they are implementing the plan. In
response, the Respondents submitted that the Court
lacks jurisdiction
deal with the Second Respondent’s compliance with its
Employment Equity Plan and Reports especially given
the reality that
the Applicant’s case is not predicated on the Second
Respondent’s Employment Equity Plan and Reports.
[37]
I concur with Second Respondent that
this Court lacks jurisdiction to deal with the Second Respondent’s
compliance with its
Employment Equity Plan and Reports in a dispute
that is referred in terms of
Section 10
of the EEA. Moreover, the
Applicant has since distanced his unfair discrimination claim from
the said Employment Equity Plan and
Reports.
Occupational Health and Safety Act, 85 of 1993
[38]
The
Applicant also testified that the First Respondent failed to comply
with the provisions of the Occupational Health and Safety
Act 85 of
1993 (“
OHSA”
)
with regard to the safe work environment. As such, the
Applicant seeks an order compelling the First Respondent to comply
with the OHSA. In opposition, the Respondents submitted that
the Applicant’s claim in that regard is limited to the
period
he was still in the employment of the Second Respondent.
However, subsequent to his dismissal, there is no evidence
that the
Second Respondent is not complying with the OHSA. Accordingly,
the Court lacks jurisdiction to grant the relief
claimed by the
Applicant and as such the claim stands to be dismissed, so it was
further submitted.
[39]
Certainly,
this Court lacks jurisdiction to deal with this claim. In fact,
non-compliance with the OHSA is a criminal offence in
terms of
Section 38 of the OHSA and Section 49 thereof affords the
Magistrates’ Courts a special jurisdiction.
Unfair discrimination
[40]
The
Applicant testified that he has a permanent hearing impairment which
affected his ability to perform his duties. He lost
hearing in
his left ear sometime in 2001. On 7 October 2004, he formally
notified the Second Respondent of his disability by serving
a
National Treasury Treatment Authority as a proof.
[3]
As a result of being deaf in one ear, he was sensitive to
noise. The noise level at the primary school where he had
been
placed to teach, Yeoville Community School, was intolerable to him.
As a result, he could not continue in a classroom
environment because
of the high level of noise.
[41]
Despite
the Second Respondent’s concession that the Applicant has a
permanent disability, it failed to reasonably accommodate
him in one
or more of the following ways:
41.1
To remove him from the noisy environment;
41.2
To adapt his working conditions in order to
minimise the impact of his impairment on his capacity to fulfil his
job;
41.3
To medically board him;
41.4
To consult with him on alternatives that
had been available, given the seriousness of his impairment;
and
41.5
To reasonably accommodate him given the
fact that he sustained his injuries on duty.
[42]
The
Applicant further testified that the Respondents missed an
opportunity to address his condition when they failed to appoint
him
in one of the positions that had been vacant at Allen Glen High
School, a less noisy environment and more suitable since it
was
closer to his home at that time.
[43]
During
cross-examination, the Applicant conceded that even though he had a
hearing impairment, he was still able to perform his
duties as a
teacher at a primary school. Nonetheless, he was adamant that a
primary school environment was not convenient since
he could have
lost balance and injured himself or the students. He was expecting
the Respondents to consult with him in order to
establish the extent
of his impairment and agree on the process to reasonably accommodate
him. Instead, they instituted a disciplinary
hearing and terminating
his services ultimately.
[44]
He
testified further that he was not asking for something that was
impossible. The Respondents could have looked for an alternative
position that was office bound in order to accommodate him. He,
however, conceded that reasonable accommodation in terms
of the
Disability Guidelines does not mean that the employer had to find an
alternative job if he could have been reasonably accommodated
as a
teacher.
[45]
The
Respondents did not lead any oral evidence but made the following
submissions:
47.1 The Applicant failed to show, on a balance of
probabilities, that he had been discriminated against by the
Respondent’s failure to reassign him to a non-teaching
position;
47.2 The Respondents had no legal obligation to
appoint the Applicant to a non-teaching job as a result of his
hearing impairment and, as such, failure to do so did not amount to
unfair discrimination; and
47.3 The hearing impairment did
not prevent the Applicant from discharging his functions as a teacher
or to advance
as a teacher. As such, his disability was not one
that qualified for protection under EEA.
Legal principles and analysis
[46]
The heart of the Applicant’s
case is that the Respondent discriminated against him on the ground
of disability, i.e. his permanent
hearing impairment. Section
6(1) the EEA prohibits any person from unfairly discriminating,
directly or indirectly, against
an employee, in any employment policy
or practice, on one or more grounds, including disability. Whilst
Section 6(2)(b) provides
that it is not unfair discrimination to
distinguish, exclude or prefer any person on the basis of an inherent
requirement of a
job.
[47]
The
Constitutional Court firmly held that when it comes to interpretation
of statutes,
‘“
it was no longer
going to be business as usual” – that business being the
statute as the starting point.
The starting
point is no longer the statute but the Constitution itself.
’
[4]
In
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Tourism and Others,
[5]
the honourable Justice
Ngcobo,
as was then, stated that:
“
The
Constitution is now the supreme law in our country. It is therefore
the starting point in interpreting any legislation. Indeed,
every
court “must promote the spirit, purport and objects of the Bill
of Rights” when interpreting any legislation.
That is the
command of section 39(2). Implicit in this command are two
propositions: First, the interpretation that is placed upon
a statute
must, where possible, be one that would advance at least an
identifiable value enshrined in the Bill of Rights; and second,
the
statute must be reasonably capable of such interpretation. This flows
from the fact that the Bill of Rights “is a cornerstone
of [our
constitutional] democracy.” It “affirms the democratic
values of human dignity, equality and freedom””
[48]
In
IMATU v
City of Cape Town,
[6]
Murphy AJ, as was then, expansively dealt with the tenets relating to
unfair discrimination on the ground of disability. He then
emphatically adopted the following test as laid down in
Harksen
v Lane NO:
[7]
“
The
first enquiry is whether the provision differentiates between people
or categories of people. If so, does the differentiation
bear a
rational connection to a legitimate governmental purpose? If it does
not, then there is a violation of the guarantee of
equality. Even if
it does bear a rational connection, it might nevertheless amount to
discrimination. The second leg of the enquiry
asks whether the
differentiation amounts to unfair discrimination. This requires a
two-staged analysis. Firstly, does the differentiation
amount to
“discrimination”? If it is on a specified ground, then
discrimination will have been established. If it is
not on a
specified ground, then whether or not there was discrimination would
depend upon whether, objectively, the ground was
based on attributes
and characteristics which had the potential to impair the fundamental
human dignity of persons as human beings
or to affect them adversely
in a comparably serious manner. Secondly, if the differentiation
amounted to “discrimination”,
did it amount to “unfair
discrimination”? If it is found to have been on a specified
ground, unfairness will be presumed
under the Bill of Rights by
virtue of the provisions of section 9(5) of the Constitution, which
transfers the onus to prove unfairness
to the complainant who alleges
discrimination on analogous grounds. As I read section 11 of the EEA,
no similar transfer of onus
arises under the EEA. In other words,
whether the ground is specified or not the onus remains on the
respondent throughout to prove
fairness once discrimination is
shown.”
[8]
[49]
He stated further that:
[9]
“
The
word “disability” is not defined in the EEA, but item 5
of the Code of Good Practice: Key Aspects on the Employment
of People
with Disabilities, enacted in terms of the EEA, defines “people
with disabilities” as “people who have
a long-term or
recurring physical or mental impairment which substantially limits
their prospects of entry into, or advancement
in, employment”.
Item 5 commences with the following statement in item 5.1:
“
The
scope of protection for people with disabilities in employment
focuses on the effect of a disability on the person in relation
to
the working environment, and not on the diagnosis or the impairment.”
The
definition is therefore not based on the medical model of disability
but rather on the effect the impairment has in limiting
the
complainant’s entry into, or advancement in, employment…”
[50]
Section
11 of the EEA, before the 2013 amendment, did not expressly
restrict the presumption of unfairness to discrimination
on one
or more of the listed grounds save to state that
‘
whenever
an unfair discrimination is alleged in terms of this Act, the
employer against whom the allegation is made must establish
that it
is fair’.
At most, the
Applicant must show that he was discriminated against and the basis
thereof
even though the burden of proving
fairness rests on the Second Respondent.
Accordingly,
I have to first determine whether the conduct of the Second
Respondent amounts to discrimination and thereafter determined
the
fairness thereof.
Was there any discrimination?
[51]
The
objects of EEA are,
inter alia
, to give effect to the constitutional guarantees of equality; to
eliminate unfair discrimination at the workplace; and to ensure
implementation of employment equity to redress the effects of past
discrimination in order to achieve a diverse workforce representative
of all our people.
[10]
Section 6 of the EEA expressely prohibits unfair discrimination
whilst Section 5 of the EEA obliges every employer to take
steps
to promote equal opportunity in the workplace by eliminating unfair
discrimination in any employment policy or practice.
Unlike
provisions of Chapter III of the EEA which is applicable to the
designated employers only, Sections 5 and 6 fall under Chapter
II of
the EEA which mandatorily applies to all employers.
[52]
Turning
to the facts of this case, it is not disputed that the Applicant has
a permanent hearing impairment due to deafness in his
left ear. As a
result, he could not cope in a noise inherent primary school
environment which affected his balance. All his attempts
to engage
the Second Respondent on his disability were in vain.
In
paragraph 4 of his founding affidavit initiating the proceedings
before the Equality Court, he states the following:
“
I
went to the Labour Court in October 2005 for the first time and
requested that the First Respondent must attend to my
EMPLOYMENT
EQUITY ACT
- DISABILITY CLAIM
.
The employees in the employ of the First Respondent refused to ACT.
The State Attorney, obo of the First Respondent, reassured
Judge
Francis that they will settle the disputes with me, the Applicant.
This was a BIG FAT LIE. This never happened.”
[53]
I
have no reason to doubt that the Applicant’s hearing impairment
had an adverse effect on him as a teacher. Even though he
conceded
that he could perform his teaching functions, he was adamant that
because of loss of balance consequent to noise, he was
a danger to
himself and the learners. Also, it is common cause that in 2005 the
applicant was disqualified from receiving a pay
progression due to
poor performance which he attributed to his hearing impairment.
[54]
The
Second Respondent clearly ignored all the signs that highlighted the
seriousness of the Applicant’s plight as person with
disability. The report compiled by the principal of Yeoville
Community School, Nagalingam Moodley, dated 26 May 2005 bought to
light the extent of the Applicant’s challenges. Therein the
following is recorded:
“
Mr
DC Senekal, Persal Number 143230087, had arrived at the School on
23
rd
August 2004 and was introduced to me and re-introduced to the other
members of the School Management, by Dr V.S Richard the I.D.S.M,
who
also informed that Mr Senekal will be part of the staff again, after
not being at the School for about 4 years, during which
time he had
been at an ABET Centre.
It was agreed that Mr Senekal
would require some time and guidance in adjusting and orientating
into the Primary School environment,
This does not seem to have
been easy for Mr Senekal, as he has stated that he is not comfortable
in the class with learners, as
he is accustomed to the ABET
environment.
He has not been able to
become sufficiently orientated into the requirements of the School
and has thus often, not been able to
produce and or perform the
required duties and tasks, on time or at all. This leads to a variety
of disruptions within the planned
outcomes of the School’s
schedule of activities, duties and tasks.
He has recently stated to the
School Management Team, that he does not wish to be at a School, but
would rather prefer to be at
an ABET centre.
This seems
to be the reason that he has been absent so often, and most of the
time, without informing the School of his absence.
At most times, his
reasons for absence, goes beyond the leave determination schedule and
is unacceptable and could have a negative
impact on other Staff at
the School. His absenteeism certainly has a very negative impact of
the progress of learners.”
[11]
[55]
I,
accordingly, take a deem view of the manner in which the Second
Respondent’s officials handled the Applicant’s grievances
and subsequent litigation. As difficult as it may have been to deal
with the Applicant since he is a man who is not shy to put
his
thoughts on paper on every issue, at least they should have honoured
the commitment to settle the Applicant’s grievances
they
undertook before Judge Francis. On the contrary, they disappeared
into the impenetrable bureaucratic systems for almost two
years,
leaving the Applicant with no option but to withhold his services due
to the intolerable working environment and at the
cost of his
employment.
[56]
In
the premises, the Applicant successfully showed that he was
discriminated against on the ground of disability.
Was the discrimination fair?
[57]
The
Code of Good Practice: Key Aspects on the
Employment of People with Disabilities
(2002) (“the Code”),
is an important guide for employers and employees on key aspects of
promoting equal
opportunities and fair treatment for people with
disabilities as required by the EEA. In its preamble, the Code
underscores
the importance of friar treatment of people with
disabilities ‘since disability is a natural part of the human
experience
and in no way diminishes the rights of individuals to
belong and contribute to the labour market. When opportunities and
reasonable
accommodation is provided, people with disabilities can
contribute valuable skills and abilities to every workplace, and
contribute
to the economy of our society’.
[58]
Article
2 of the UN Convention on people with Disabilities, 2007 defines
discrimination on the basis of disability as ‘any
distinction,
exclusion or restriction on the basis of disability which has the
purpose or effect of impairing or nullifying the
recognition,
enjoyment or exercise, on an equal basis with others, of all human
rights and fundamental freedoms in the political,
economic, social,
cultural, civil or any other field. It includes all forms of
discrimination, including denial of reasonable accommodation’.
[12]
[59]
Item
6 of the
Code deals with reasonable
accommodation of people with disabilities and provides that:
“
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.
6.2.
Employers may adopt the most cost-effective means that are consistent
with effectively removing the
barrier to a person being able to
perform the job, and to enjoy equal access to the benefits and
opportunities of employment.
6.3.
Reasonable accommodation applies to applicants and employees with
disabilities and may be required:
(i) during the recruitment
and selection processes;
(ii) in the working
environment;
(iii) in the way work is
usually done and evaluated and rewarded; and
(iv) in the benefits and
privileges of employment.
6.4
The
obligation to make reasonable accommodation may arise when an
applicant or employee voluntarily discloses a disability related
accommodation need or when such a need is reasonably self-evident to
the employer.
6.5.
Employers must also accommodate employees when work or the work
environment changes or impairment varies
which affects the employee's
ability to perform the essential functions of the job.
6.6.
The employer should consult the employee and, where practicable,
technical experts to establish appropriate
mechanisms to accommodate
the employee.
6.7.
The particular accommodation will depend on the individual, the
impairment and its effect on the person,
as well as on the job and
the working environment...”
[60]
In
Hoffmann
v South African Airways
[13]
the Constitutional Court endorsed the description of unfair
discrimination as enunciated in
President
of the Republic of South Africa v Hugo
[14]
where it was held that ‘at the heart of the prohibition of
unfair discrimination is the recognition that under our Constitution
all human beings, regardless of their position in society, must be
accorded equal dignity. That dignity is impaired when a person
is
unfairly discriminated against. The determining factor regarding the
unfairness of the discrimination is its impact on the person
discriminated against’.
[61]
In
Standard
Bank of South Africa v The Commission for Conciliation, Mediation and
Arbitration
,
[15]
this
Court held that the conduct of a bank in dismissing an employee on
the ground of incapacity constituted unfair discrimination
under EEA
for failure to provide reasonable accommodation.
[62]
In
the present matter, it is common cause that the Second Respondent
failed to reasonably accommodate the Applicant. As a result,
the
Applicant was subjected to intolerable working conditions which led
him to respond by withdrawing his services out of desperation.
I have
no doubt that the conduct of the Second Respondent affronted the
Applicant’s
fundamental dignity hence
I find it to constitute an
unfair
discrimination.
[63]
The
Applicant also testified that the Second Respondent failed to
consider him for promotion in a school that would have reasonably
accommodated him. Even though the employee is no longer seeking
promotion as a relief, that claim serves to prove that the Second
Respondent was in a position to reasonably accommodate the Applicant
in a manner that would not have imposed an undue burden.
[64]
The
Respondents did not even attempt to justify the Second Respondent’s
conduct in unfairly discriminating against the Applicant,
prudently
so, as the conduct of the Second Respondent falls outside the purview
of
Section 6(2)(b) of the EEA.
Relief
[65]
In
terms of Section 50(2)(a) of the EEA, the Court may make ‘any
appropriate order that is just and equitable in the
circumstances,
including…payment of compensation by the employer to that
employee’. As such, I have considered, as
appears from what I
have said earlier, the unconscionable manner in which the Second
Respondent’s officials dealt with the
dispute from the
beginning; the fact that people with disabilities need a special
protection since they are vulnerable; and the
muddled manner in which
the Applicant approached this litigation. It is my view, therefore,
that a compensation equivalent to 12
months remuneration is just and
equitable.
Costs
[66]
The
Applicant is also seeking costs even though he was not represented
during the hearing of these matters. Still, I deem it fair
to award
costs for all the instances in which he was legally represented.
Order
[67]
In
the circumstances, I make the following order covering both matters:
1.
The
application for condonation is granted.
2.
The
claims for medical aid contribution; cash bonus; pay progression;
Employment Equity Plan and Reports; and compliance with the
OHSA are
dismissed.
3.
The
Second Respondent unfairly discriminated against the Applicant on the
ground of disability.
4.
The
Second Respondent is ordered to pay the Applicant an amount
equivalent to 12
months’ remuneration, calculated
at the rate
of his remuneration on 31
December 2007, the date of his dismissal.
5.
The
Respondents are ordered to pay costs.
__________________
Nkutha-Nkontwana AJ
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT:
In person
FOR THE RESPONDENTS:
Adv S
Baloyi
Instructed by:
The State Attorney
[1]
In
NEHAWU obo
Mofokeng & others v Charlotte Theron Children’s Home
[2004] 10 BLLR 979
(LAC) the LAC
noted
that the EEA incorporates section 136(1) of the LRA by reference.
That provision sets a deadline of 90 days from the date
on which a
certificate is issued for a party to refer a dispute for
arbitration.
[2]
[2015] 2 BLLR 137
(LAC) at para 17.
[3]
See page 7 of bundle 2.
[4]
Centre for Child Law v Minister for Justice
and Constitutional Development and Others
2009 (6) SA 632
(CC) at para 106.
[5]
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC) at para 72.
[6]
[2005] 11 BLLR 1084 (LC).
[7]
1998 (1) (SA) 300 (CC) paras 78 - 81.
[8]
Above n 5 at para 81.
[9]
Above at para 89.
[10]
See the Preamble to the EEA.
[11]
See page 26 of bundle 2.
[12]
Article 2 of the UN Convention on people with
Disabilities, 2007. This definition has been incorporated into the
amended Code.
[13]
[2000] 12 BLLR 1365
(2001 (1) SA 1)
(CC).
[14]
[1997] ZACC 4
;
1997 (6) BCLR 708
(CC); 1997 (4) SA 1 (CC).
[15]
Standard Bank of South Africa v CCMA &
others
[2007] ZALC 98
;
[2008] 4 BLLR 356
(LC).