About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 329
|
|
EWN v Pharmaco Distribution (Pty) Ltd (JS654/10) [2015] ZALCJHB 329; (2016) 37 ILJ 449 (LC) (22 September 2015)
Reportable
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS654/10
In
the matter between:
EWN
[i]
Applicant
and
PHARMACO
DISTRIBUTION (PTY) LTD
Respondent
Delivered
:
22 September 2015
Summary:
(Automatically unfair dismissal – 187(1)(f)
of LRA – Unfair discrimination – s 6 of EEA –
requirement to
undergo psychiatric assessment – predominant
reason applicant’s bi-polar condition – compensation –
general
damages – provision in contract contrary to s 7 of EEA)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter, Ms L EWN, a
pharmaceutical sales representative (‘EWN’), was
dismissed on 3 December 2009
for a “particularly serious and/or
repeated wilful refusal to carry out lawful instructions or perform
duties”. The
instruction she failed to perform was to present
herself on 24 November 2009 to one Dr R Liebenberg, a psychiatrist,
for a medical
examination. The applicant, who suffers from a bipolar
disorder, which she maintains was under control, claims that the
instruction
was unlawful and an act of unfair discrimination based on
disability amounting to an act of harassment.
[2]
The respondent company (‘Pharmaco’)
contends that the instruction was both reasonable and lawful in terms
of EWN’
s contract of employment, and was necessary to
determine if she was “fit to work”.
The
respondent claimed EWN was required to undergo such assessment “
on
account of her inappropriate, aggressive and irrational behaviour
towards fellow workers and management on inter alia 20 October
and 23
October 2009.”
[3]
In terms of the agreed pre-trial minute
between the parties, the issues the court is required to determine
are:
3.1
whether the provisions in EWN’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 Labour
Relations Act, 66 of 1995 (‘the LRA’), and
3.3
in the event her dismissal was not
automatically unfair, whether it was substantively or procedurally
unfair.
[4]
EWN seeks relief in the form of payment of
compensation to the in the amount of R524,064.00 being the equivalent
of 24 months’
remuneration or, alternatively payment of twelve
months’ compensation in the event her dismissal is found
substantively and
procedurally unfair. She also claims payment of an
amount of R100, 000.00 in respect of non-patrimonial damages for
contumelia
,
humiliation, impairment of dignity and
injuria
.
[5]
The applicant testified herself and called
one other witness, Ms R Chater, a former doctors’ sales
representative who had
also worked in the Pretoria region where EWN
worked. The respondent called Mr R Agustoni, the CEO of the
respondent, Ms M Naidoo,
a Sales Co-ordinator at the time (‘Naidoo’)
, Ms L Mnyengeza, the personal assistant to Agustoni’s
secretary
( ‘Mnyengeza’), Mr M Bauer, a director of the
respondent’s firm of instructing attorneys, and Mr P van
der Walt, an external IT consultant (‘Van der Walt’) as
its witnesses. Bauer’s evidence only related to efforts
of the
respondent to secure the attendance of witnesses at the proceedings.
Brief
chronology
[6]
Before dealing with evidence pertinent to
the main issues in dispute, it is useful to set out a brief
chronology of events preceding
EWN’s dismissal based on what
was common cause between the parties.
[7]
The applicant was employed as a pharmacy
sales representative on one July 2008 under a fixed term contract. In
mid-July 2009 she
was employed on an indefinite basis under a written
contract of employment. A term of that contract reads:
“
17
MEDICAL EXAMINATIONS AND HEALTH
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 incapacity disability or
death. Misrepresentation in this respect
will make this 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
error of operable 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.
17.4 Should the medical
diagnosis and/or prognosis indicate a certified medical need to
recuperate from any illness then a maximum
of 6 (six) weeks shall be
granted. However, if repeated periods of recuperation of Thereafter
needed, exceeding an aggregate of
2 (two) weeks or more with in the
following 6 (six) months, the Company may at its discretion conclude
that the Employee is medically
incapacitated to continue with the
employment relationship. The Employee’s services may then be
terminated without the Company
incurring any further liability
towards you. It is agreed that the aforesaid period granted for
recuperation shall be non-remunerative,i.e
once you are sick leave
allowance for paid sick leave is used up (if any), then you shall not
receive any payment whatsoever from
the Company for the remainder of
the recuperation period.
17.5 If in the course of
any treatment for any medical or mental condition, such medical
treatment is subject to the taking of drugs
treatment which may
impair mental faculties or performance, then and in that event the
Company may at its discretion conclude the
Employee is medically
and/or mentally unsuitable for continued employment and the
Employee’s services may be terminated without
further
liability.”
[8]
In December 2008 EWN’s performance
appraisal stated that her performance was “
exceptional
and consistently demonstrates excellent standards in all job
requirements
.”
[9]
During January to October 2009, EWN queried
the calculation of commission as determined by Pharmaco and delays in
paying her commission
due. On 25 October 2009 she addressed an email
to Mr R Agustoni, the chairperson and CEO of Pharmaco (‘Agustoni’),
which read:
“
Dear
Roberto,
As per our discussion on
Friday 23 October at the office, I confirm that I have received a
printout with my sales per pharmacy,
per product for the year to
date. I also confirm that I have pointed out to you Roy and Phillip
some very obvious and blatant errors.
These errors affect commission
owing and payable to me as per the company’s commission
structure materially.
I confirm that on more
than one occasion I have respectfully requested Pharmaco to rectify
the mistakes as a matter of urgency.
I personally have spent many
days of my own personal time to fix errors, link pharmacies that were
omitted and add pharmacies that
were part of my area structure.
I record respectfully
that I do not agree with the sales numbers as per the printout
presented to me on Friday. I once again requested
sales attributable
to me for commission purposes be corrected.
January to July
commissions on now long overdue so treat this matter as of the utmost
urgency.
I look forward to a
positive written response from you soonest.
Regards
Lize EWN”
[10]
Subsequently, on 28 October 2009, EWN
raised a formal grievance about her commission payments. On the same
day, she was given a
notice to attend a disciplinary enquiry
scheduled for 30 October 2009. The enquiry concerned six charges all
of which arose from
her interactions, particularly on 20 and 23
October 2009, with various staff in her efforts to resolve her
complaints about her
commission payments. She was found guilty of
some of the charges which related to alleged incidents and/or using
abusive and/or
insulting language towards fellow employees and the
employer and of going to head office without permission on 23 October
2009,
and of damaging the company’s reputation by insisting
that the employer had produced incorrect sales figures to deprive her
of commission. The only charge she was found not guilty of was of
intimidating another employee.
[11]
Naidoo had said that on 23 October 2009,
EWN had come into head office unannounced and demanded information
about her sales figures.
In the three weeks prior to that, EWN had
come to head office every Friday to address the queries she had about
the discrepancies
in the reports she had received. Naidoo claimed
that EWN was screaming and shouting, raising her voice and talking in
an aggressive
fashion. Naidoo said she could not assist her and she
would have to wait for Van der Walt. EWN approached Naidoo at the
front of
her workstation then walked around behind her wanting to get
access to Naidoo’s computer. When Naidoo refused, EWN told her
to get off her chair so she could get access to the computer herself.
Naidoo felt a bit intimidated but knew she could do her no
harm and
at no stage did she feel physically threatened by her behaviour on
that occasion. Naidoo refused to move and refuse to
access the report
because EWN was supposed to get that from Van der Walt. EWN then
asked her how she could get the information
and Naidoo told her to
wait for Van der Walt.
[12]
Mnyengeza was the other witness to EWN’s
anger on that occasion. At the time she was manning the reception and
the switchboard
and witnessed EWN shouting at Naidoo. When EWN could
not get access to Naidoo’s computer, she came to the front desk
and
grabbed the switchboard phone without asking and tried to get
hold of Van der Walt. She returned to Naidoo when this proved
unsuccessful.
Mnyengeza was disturbed by the change in EWN’s
behaviour because she was normally a nice person. Nevertheless,
Mnyengeza
agreed that she did not fear for her own safety nor did she
think that EWN was threatening towards Naidoo. She also did not feel
the need to alert Tindale to the situation and could not say whether
he came out of the office because EWN was shouting for him
or because
he had heard her shouting.
[13]
Naidoo was only responsible for entering
the details of new clients on the system according to area whereas
Van der Walt was responsible
for ensuring that sales were properly
captured on the system.
[14]
After unsuccessfully trying to reach Van
der Walt on the receptionist’s phone, EWN then shouted down the
passage a few times
for Tindale. Tindale came and asked her to calm
down and wait for the information, but she was still very upset and
as far as Naidoo
could recall, she then went to see EWN’s
secretary. It was not the way EWN normally behaved and Naidoo was
shocked how different
she was. However, she conceded that EWN had not
used any abusive or crude language. Naidoo claimed not to have been
aware of EWN’s
bipolar condition and said she only heard about
it afterwards. Although she was friendly with EWN, EWN had never
mentioned it to
her. This was never put to EWN under
cross-examination.
[15]
On 5 November 2009, EWN was issued with a
final written warning based on the enquiry findings, against which
she appealed on 10
November 2009.
[16]
On 20 November 2009, Agustoni issued EWN
with a letter suspending her on full pay with immediate effect
instructing her to present
herself for a medical examination before
Dr Liebenberg, a psychiatrist, on 24 November 2009. She was told that
the purpose was
to determine “whether or not you are fit to
deal with your tasks”. EWN was further warned in the letter
that failure
to attend the examination would constitute a serious
offence.
[17]
The parties recorded that it was common
cause that, prior to this instruction being issued, she had performed
her work satisfactorily
and competently and Pharmaco had not
questioned her work performance or competency.
[18]
On 20 November 2009, EWN responded through
her attorneys of record at the time. Their letter outlined the
disciplinary measures
taken recently against EWN as well as the
pending CCMA referral and grievance relating to her commissions. The
letter suggested
that Pharmaco was victimising her and called upon
the company to uplift her suspension and withdraw the instruction.
Pharmaco responded
on 23 November 2009, rejecting the demand and
suggesting that any complaint about victimisation was just an attempt
to divert attention
from the actual matter at hand which it described
as a’ simple’ one, namely:
“
...
we did not know about the bipolar disorder of your client until she
revealed suffering from such to Mr Hippele and Mr Tindale
during a
recent hearing. There had been incidents in our company which forced
us as a caring and responsible employer to insist
that Mrs EWN attend
the doctor’s appointment we have arranged back tomorrow... both
in her own and in the company’s
lawful and justified interest.”
[19]
It was common cause that no sales
representative had been subjected to any pre-employment medical or
psychological assessment. Agustoni
was of the view that there was no
need to be concerned about the lack of pre-employment medical testing
because the employee warranted
that they were free from any illness
which might incapacitate them in clause 17.2 of the contract.
Agustoni did agree that if an
employee was unable to perform their
duties that would constitute some form of incapacity.
[20]
On 23 November 2009, EWN referred an unfair
labour practice dispute concerning the instruction to submit herself
to a medical examination.
Following her dismissal on 3 December 2009,
she referred a dismissal dispute to the CCMA on 5 December 2009. On
the same day she
provided Pharmaco with a letter from a counselling
psychologist, Mr KD Fourie, dated 23 November 2009. The content of
the letter
stated:
“
Ms
EWN requested psychotherapy during March 2007 shortly after moving to
Pretoria. Prior to that, she was in therapy with Dr J de
Villiers in
Cape Town, who referred her to me. She has been in therapy with me on
an ongoing basis since then, on average once
a month.
Therapy is primarily of a
supportive nature and is intended to assist with the management of
her bipolar disorder and general life
stressors. The functioning as
well as appeared to be good and her bipolar disorder well-managed.
She is also medication compliant.
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.”
[21]
The same day, EWN’s attorneys sought
an undertaking from the company suspending the medical examination
pending the outcome
of an urgent application in the Labour Court. An
application was launched on the same day to uplift EWN’s
suspension and
to declare Pharmaco’s instruction unlawful. The
application was unsuccessful.
[22]
The 26 November 2009, EWN was issued with a
notice of a second disciplinary enquiry to be held on 2 December
2009. The following
day, a hearing was held to consider her grievance
over commission payments. Her grievance was dismissed as unfounded on
30 November
2009.
[23]
The second disciplinary hearing took place
on 2 December and the following day she received a letter confirming
she had been dismissed.
EWN referred an unfair dismissal dispute to
the CCMA but at arbitration proceedings the arbitrator ruled that the
CCMA did not
have jurisdiction to hear the dispute which led to the
referral to this Court.
[24]
EWN was able to get alternative employment
with another pharmaceutical company in January 2010 at approximately
the same level of
remuneration.
Material
aspects of the evidence
[25]
EWN testified that shortly after commencing
employment with the company she had informed Mr Roy Tindale, the
National Sales Manager,
of the fact that she suffered from bipolar
disorder. Chater was unable to confirm whether management was
aware of the applicant’s
condition, but confirmed that it was
well known within the company and was spoken of in meetings held
between the sales representatives
and management. Agustoni was
unable to confirm this and the company did not call Tindale as a
witness. Agustoni claimed however
to have been very concerned about
learning of EWN’s condition because of the nature of the work
she was doing. He decided
that it was necessary to obtain an
assurance that she could perform her duties and did not pose a risk
to the company or its client
market. There was some controversy about
whether EWN’s condition was known within the company. On the
evidence, I am satisfied
that her bi-polar status probably was known
by Tindale and at least some of the sales staff, but I accept that
Agustoni might not
have been aware of it personally until the issue
came up in the disciplinary enquiry.
[26]
Chater also testified that she did not find
her work stressful, contrary to Agustoni who maintained that the
limited time that representatives
had with customers meant that they
had to be very focused and to the point in their communications which
place them under a lot
of pressure.
[27]
The main purpose of EWN’s job as a
pharmacy sales representative as described in her written job
description was:
“
To
provide pharmacies (and other designated targets) with all necessary
information on specific company’s products, with the
aim to
negotiate their correct installation and development within the
pharmacy (or other retail outlet). Setup of all regular
and necessary
activities, promotions and deals, enabling a successful and
sustainable product sales development, according to company
policy,
strategies and budgets.”
[28]
She was also assigned detailed
tasks/responsibilities which included, amongst other things:
28.1
calling on pharmacies within a designated
geographic area of responsibility, which could be changed by Pharmaco
from time to time;
28.2
development of targeted pharmacies and
outlets prioritising them according to a company classification
system;
28.3
promoting Pharmaco’s products, and
28.4
ensuring adequate product stock levels were
maintained at pharmacies.
[29]
EWN performed sufficiently well to have her
fixed-term contract converted into a permanent contract and in her
latest performance
assessment her performance was rated as
“
exceptional
”.
EWN claimed that her job did not require any particular level of
medical fitness or psychological well-being.
[30]
The difficulties relating to her commission
payment began in September 2009, when her sales figures were adjusted
downwards when
a number of sale items appearing on an initial list
were removed in a subsequent list, which had the effect of reducing
her commission.
She felt that Pharmaco did not explain the reason for
the amendment and would not engage with her about it. The matter
caused her
considerable aggravation. Despite meetings between
herself, Tindale and Van der Walt to try and address the issue, her
claims were
rejected and Pharmaco would not admit it had made a
mistake. At one point, Tindale had demonstrated his attitude towards
her claim
by throwing her figures in the bin acc.
[31]
It was suggested to EWN under
cross-examination that ultimately her claim for extra commission was
unfounded as she had not pursued
it after the grievance hearing.
EWN’s explanation was that she did not take it further because
the grievance had become overshadowed
by her subsequent dismissal and
the litigation relating to that. Nonetheless, she was not happy with
the outcome of the grievance
hearing which it had been found that the
figures relied upon by the company to determine her commission were
correct. She still
believed that the company had not properly
explained discrepancies in relation to the different printouts she
had received, taking
into account invoices which she had presented to
substantiate her position.
[32]
It was EWN’s interactions with staff
in October 2009 which resulted in the first disciplinary charges
being brought against
her. EWN noted that in the course of the
testimony in the disciplinary enquiry neither Naidoo nor Mnyengeza
testified that the
applicant had behaved in an abusive manner. Even
though they said that she had raised her voice they acknowledged that
their perceptions
may have been affected by the fact that the
applicant was generally very polite. Neither of them had said
they felt threatened
by her. She had lodged an appeal against the
final written warning which had been issued but that process also was
overshadowed
by her dismissal.
[33]
Van der Walt managed the custom designed
Pharmaco Management Information System (‘PMIS’). The
system enabled the respondent
to identify who had sold what products
to which clients in the course of a month. It was his responsibility
to verify with sales
representatives which customers’ sales
should be allocated to them. He could not alter the data which was
inputted into the
system when sales were generated. Some of the data
was entered daily and data from smaller companies was entered
monthly. He had
spent some days going through the reports with her
adding customers in her area. However she was still not satisfied.
There was
a disagreement between him and EWN about signing off on the
reported after she had accessed the system and amended the list of
customers whose sales should be attributed to her. Van der Walt would
not sign off on the changes because that had to be approved
by
Tindale. EWN got very angry when she was told that Tindale would not
approve the inclusion of one wholesaler on her list. She
had turned
red in the face, was tearful, but also smiled. He felt uncomfortable
and left the office. He understood she was angry
because she did not
make her commission target. He felt it was unfair that he had to
explain the exclusion of the wholesaler from
her list, as he was not
part of management. He could not explain any discrepancy EWN had
complained about in respect of the specific
product sales credited to
her account, because it was difficult to say which of the two report
sheets were correct in view of numerous
calculations in the
background of the reports.
[34]
It was during the disciplinary enquiry of
30 October 2009 that EWN said that Tindale had interrupted her and
asked her what medication
she was on. She said it was for her bipolar
condition, which he already knew about. He had only denied that he
knew about her condition
in his official capacity. In her termination
letter it was recorded that “…
Tindale
explained for the company that he never had any formal or official
knowledge of your bipolar condition until recently when
you confirmed
that you suffer from such disease (although allegedly nonsymptomatic)
during a disciplinary hearing.
”
Agustoni denied that this suggested Tindale knew of EWN’s
condition unofficially. Agustino did concede that
it was possible the
company would not have asked EWN to undergo a medical examination if
she had not disclosed her bipolar status,
but her conduct had raised
concerns. However, he would not have asked her to be medically
examined based simply on her behaviour
alone.
[35]
EWN said she was surprised by Tindale’s
question and afterwards learnt from Chater that Tindale had told
Chater that she was
mentally unstable and that the company had asked
her to undergo a psychiatric assessment. Chater confirmed this
account in her
testimony. EWN was insulted and distressed by
Tindale’s question. EWN was challenged about the prior
disclosure of her condition.
She said that it was something that was
generally known in the company and it had come up in a general
discussion between management
and reps when they were talking about
medical conditions. Chater confirmed that she had learnt of EWN’s
bipolar condition
from other sales representatives very soon after
she was employed.
[36]
EWN’s subsequent suspension on 20
November came as a surprise to her and she pointed out under
cross-examination that she
would have expected them to have suspended
her after the events of 20 and 23 October if they were genuinely
concerned about her
behaviour. She confirmed that she had tendered a
letter from her psychologist in response to the notice to undergo an
examination.
The company never responded to this. Agustoni defended
Pharmaco’s insistence that EWN submit to a psychiatric
examination
because the psychologist was not a psychiatrist, but he
admitted that this was never conveyed to EWN. EWN also stressed that
there
had never been a question about whether she was able to do her
job and could not accept that the employer needed a medical opinion
to confirm that she was fit to do her work. Agustino was adamant that
EWN’s psychologist was not capable of addressing her
condition
in full and the company was entitled to rely on clause 17.3 to insist
that she was examined by a medical professional.
He also said it was
unlikely the company would have accepted an opinion from EWN’s
own psychiatrist, because it wanted an
opinion from someone who had
no link with her.
[37]
In EWN’s termination letter, Agustoni
stated: In his letter of termination Agustoni noted that “
The
Company also has rights, including the right that its employees and
clients are protected and safe at all times.
”
An important leg of Agustoni’s testimony was his defence of
clause 17.3 of EWN’s contract of employment. He
maintained that
it had been included to protect both employees and the company’s
clients and he had checked to see if it
was permissible. Amongst
other things she 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 had lesions on their
body to submit to a blood test. He gave an examples of one employee
who had shown signs of drug abuse
and on being tested this had been
confirmed, and another example of someone who had been fainting in
meetings and was found to
have high blood sugar levels. He insisted
that EWN had been dismissed solely because of her failure to submit
to the medical examination
as instructed: it had nothing to do with
her complaining about her commission payment.
Analysis
Was
the instruction to the applicant permissible?
[38]
Before deciding if the dismissal of EWN for
failing to submit to a medical examination was automatically unfair
or not, the first
question which must be addressed is whether the
instruction was legally permissible.
Section 7
of the
Employment
Equity Act, 55 of 1998
, does permit medical testing of employees, but
only in limited circumstances:
“
7
Medical testing
(1)
Medical testing of an employee is prohibited, unless –
(a)
legislation permits or requires the testing; or
(b)
it is justifiable in the light of medical facts, employment
conditions, social policy,
the fair distribution of employee benefits
or the inherent requirements of a job.
(2)
Testing of an employee to determine that employee's HIV status is
prohibited unless
such testing is determined to be justifiable by the
Labour Court in terms of
section 50
(4) of this Act.”
[39]
The first point to notice about the
provision is that no exception to the prohibition against medical
testing is made on the basis
that an employee consented to the
medical testing. Section 7 (1) (a) clearly has no application in this
case. Consequently, the
respondent could only require EWN to undergo
a test if the requirements of s 7(1)(b) of the EEA were met.
Essentially, Pharmaco
argued that the testing was justified given
that EWN had consented to undergoing a medical test when reasonably
required by it,
and her behaviour coupled with the disclosure of her
psychiatric condition provided sufficient justification.
[40]
Having regard to the wording of section 7
(1) (b) itself, the known medical facts were that: EWN suffered a
bipolar disorder and
that she was undergoing regular therapy and
being medicated for her condition. There was also the opinion of her
psychologist,
that her condition should not affect her ability to
function effectively in her work environment.
[41]
In so far as the respondent might find
support in the section that ‘employment conditions’
justified the psychiatric
examination, the respondent made some
attempt to try and suggest that the working environment of EWN was
very pressurised and stressful.
By implication, as I understood 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 EWN’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 passing,
I note that although the respondent
was adamant there were no errors, Agustoni’s and Van der Walt’s
evidence did little
to clarify the correctness of the amended sales
report or why it had changed. In any event, in so far as it may be
relevant, EWN
had a genuine belief that she had been severely
prejudiced by an unwarranted revision of the sales figures.
[43]
A similar alternative justification under
section 7(1)(b) might in theory be founded on an argument that it is
an inherent requirement
of the job of a pharmaceutical sales
representative to be medically certified fit for work. In this
respect also, the respondent
failed to demonstrate such a threshold
health qualification was required to perform the duties the job
entailed.
[44]
The above arguments are the only ones that
might conceivably have provided Pharmaco with a basis for exemption
from the prohibition
against medical testing. It should also be
mentioned in this context that the ostensible object of the
examination was not to determine
if the applicant was suffering from
some unidentified ailment that was affecting her ability to work, but
whether her disclosed
psychiatric condition made her unfit for
performing her duties. Yet, it was common cause that there were no
complaints about her
work performance.
[45]
In light of the above, I am not persuaded
that the respondent established that its instruction to the applicant
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.
[46]
On the same reasoning, in the absence of
being able to establish that clause 17.3 of EWN’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.
Did
the respondent unfairly discriminate against the applicant and was
her dismissal automatically unfair?
[47]
While there are suggestions that other
issues might have motivated her dismissal, the central issue the
Court is required to determine
is if the reason for her dismissal was
one that was automatically unfair within the meaning of
s 187(1)(f).
It has already been established that the instruction which EWN 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
bi-polar 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
Employment Equity Act.
Consequently
, her subsequent dismissal for refusing to accede to
being tested for that reason was also dismissal for a prohibited
reason in
terms of section 187 (1)(f) of the Labour Relations Act 66
of 1995 (‘the LRA’).
[48]
Agustoni
admitted that he would not have required EWN to undergo testing on
account of the conduct for which she was disciplined
alone. The
knowledge that she was bi-polar was therefore decisive. It is
noteworthy also that EWN’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 EWN 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 her 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
bi-polar status
[1]
. 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.
[49]
Consequently, I am satisfied that her
dismissal in the circumstances was based on her refusal as 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
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
Employment Equity Act.
Relief
[50]
Apart from declaratory relief relating to
her contract, the applicant seeks compensation for her dismissal and
general damages for
iniuria
relating to being instructed to submit to the examination. In
evaluating the respective claims I am conscious that the fact she
was
dismissed in consequence of the respondent’s unfairly
discriminatory action was the greater of the wrongs she suffered.
Had
she refused to attend the examination and had the respondent done
nothing the effect on her dignity would not have been as
severe.
Nonetheless, though closely related, the two claims do not overlap
entirely.
Declaratory
relief
[51]
For the reasons stated earlier, I am
satisfied that clause 17.3 of the applicant’s contract of
employment is not permissible
in terms of
section 7of
the
Employment
Equity Act and
can be declared null and void.
Unfair
discrimination
[52]
Singling the applicant out for medical
examination on account of her bi-polar illness, despite her
performance record, was a stigmatising
act and was aggravated by the
remark made by Tindale about her mental stability. The applicant
sought an award of R 100,000 in
general damages, but no specific
motivation was advanced for this amount. In the circumstances,
I think a sum of R 15,000-00
would be adequate recompense.
Automatically
unfair dismissal.
[53]
In assessing an appropriate amount of
compensation, a number of considerations have to be weighed up. In
this instance, I have considered
the applicant’s previous
length of service with the respondent and the fact that even though
the respondent 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 applicant’s contract protected
it against any
legal challenge to the instruction it issued. I must
also consider that the respondent did have an early opportunity to
reflect
on the lawfulness of its actions when confronted by EWN’s
original attorneys of record, but ploughed ahead with its intended
course of action regardless. Its ostensible rationale for demanding
the examination also lacked a credible basis for wanting to
assess
her fitness to perform her duties.
[54]
Accordingly, I believe compensation in the
amount of twelve months’ salary is appropriate. It was recorded
in the pre-trial
minute that the parties were in dispute about
whether the travel and telephone allowances paid to the applicant,
amounting to R
8,350-00 and R 500-00 respectively were part of her
remuneration, but the respondent never canvassed this issue in the
evidence.
Accordingly, the claim that they formed part of her
remuneration was not effectively challenged. The applicant’s
gross
remuneration excluding commission payments was R 18, 500-00 per
month in terms of her contract of employment.
[55]
The applicant on the other hand did not
prove the quantum of commission which she claimed formed part of her
regular income. There
was no detailed evidence presented of her
previous commission payments and in view of the dispute over her
commission due, she
did not receive a commission payment for the
period after the end of the first quarter in 2009.
Section 35(4)(
a)
of the Basic Conditions of Employment Act, 75 of 1997, (‘the
BCEA’) provides that where an employee’s wage
is
calculated wholly or in part on a basis other than time or if it
fluctuates significantly from period to period any payment
due under
that Act is calculated with reference to the employee’s
earnings during the preceding thirteen weeks. Although
s 35(4) does
not necessarily apply to the determination of the applicant’s
gross remuneration in this instance, it does illustrate
the
difficulty of extrapolating from past variable earnings to determine
what constitutes a regular income. No detailed evidence
of the
history of EWN’s gross earnings was led in this regard on which
the court could reliably estimate an average commission
component of
her salary. Accordingly, her remuneration for the purposes of
compensation has been based on her basic salary of R
18, 500.00 per
month.
Order
[56]
Clause 17.3 of the applicant’s
contract of employment is in breach of the provisions of s 7 of the
Employment Equity Act and
is of no legal force or effect.
[57]
The applicant was unfairly discriminated
against in terms of
s 6
of the
Employment Equity Act when
the
respondent instructed her to undergo a psychiatric examination on
account of her bi-polar status ostensibly to determine her
fitness to
work.
[58]
The applicant’s dismissal by the
respondent for failing to undergo a psychiatric examination on
account of her bi-polar status
ostensibly to determine her fitness to
work was automatically unfair in terms of
s 187(1)(f)
of the
Labour
Relations Act.
[59
]
Within 14 days of receipt of this judgment,
the respondent must:
59.1
pay the applicant R 15,000-00 (fifteen
thousand rands) as general damages for the unfair discrimination
committed in terms of
s 6
of the
Employment Equity Act, and
59.2
must pay the applicant R 222,000-00 (two
hundred and twenty-two thousand rands) as compensation for her
automatically unfair dismissal.
[60]
The respondent must pay the applicant’s
costs.
_______________________
Lagrange J
Judge of the Labour
Court of South Africa
APPLICANT:
Instructed
by:
Adv
G. Hulley
JD
Verster
RESPONDENT:
Instructed
by:
Adv
B Rhoode
Friedland,
Hart Solomon & Nicolson
[1]
On
the applicable test see
Kroukam
V SA Airlink (Pty) Ltd
(2005)
26
ILJ
2153 (LAC)
at
2184, paras [90] and [91] and 2206, para [26].
[i]
Applicant’s name omitted for publication purposes