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[2015] ZALCJHB 400
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M v Johannesburg Metropolitan Bus Services (Pty) Ltd (JS661/12) [2015] ZALCJHB 400 (13 November 2015)
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personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no JS 661/12
In
the matter between:
T.
N. M.
Applicant
and
JOHANNESBURG
METROPOLITAN BUS SERVICES
(PTY)
LTD
Respondent
Date
heard: 6 October 2015
Date
delivered: 13 November 2015
JUDGMENT
EVERETT
AJ;
Introduction
[1]
The applicant claims that he was unfairly discriminated against on
the basis of his HIV status and that his dismissal on the
same basis
was automatically unfair in terms of section 187(f) of the Labour
Relations Act as amended (“the LRA”).
Evidence
[2]
This matter dates back to late 2011 when, sadly, the applicant who
had worked for the respondent as a bus driver for a number
of years
became very ill. His last day at work was at the end of September
2011; he was hospitalized in October 2011 and after
his discharge he
spent a several months ill at home. During this time an application
for disability benefits through the respondent’s
retirement
fund was submitted, which application required a form to be completed
by the applicant for disability (also referred
to as the member of
the fund), a report to be completed by the applicant’s treating
specialist and a further form to be completed
by the employer. With
the applicant’s consent, his positive HIV status was disclosed
by his treating specialist. The completed
application was submitted
in January 2012.
[3]
In late March 2012, Sanlam advised the respondent that the applicant
had been found to be permanently disabled and a lump sum
amount to
R490 000 was to be paid over to him. The applicant was called in
by Human Resources but refused to sign for the
funds to be released.
[4]
The applicant claims that at a meeting on 27 March 2012, he was
dismissed on the basis of his HIV status and that his dismissal
was
accordingly automatically unfair in terms of section 187(f) of the
Labour Relations Act. He also claimed that he was treated
differently
on account of his HIV status and that this amounted to unfair
discrimination in terms of section 6 of the Employment
Equity Act.
[5]
The details of the matter, other than the broad strokes outlined
above, were highly contested, for example, who completed the
forms,
who delivered them, whether the applicant consented to the
application or was even aware of it, which meetings he attended,
who
was present at the meetings and when he was ill.
[6]
The applicant contradicted himself in the course of his evidence. He
also contradicted his statement of claim. And in a number
of respects
his evidence contradicted his witness’s evidence – that
of his brother. The employer’s witnesses,
on the other hand,
were consistent and they stuck me as honest and reliable.
[7]
It is not necessary to dwell on the details of the evidence and each
contradiction. I find that the following are the material
facts that
emerged from the evidence: The applicant was advised of the option of
applying for disability in late 2011. He said
he would consider it
and early the following year he had the forms collected or delivered
from the employer for completion. He
and his brother completed
certain sections of the member’s form and arranged for his
specialist to submit a report in compliance
with the guidelines for
treating specialists. The applicant had the forms delivered to the
employer. The forms (the member’s
section) were incomplete and
the HR officer, Ms Maluleka (no relation to the applicant) completed
them using information on file
and information gained in a telephonic
conversation with the applicant. Once the application was approved by
Sanlam, the applicant
and his family were unhappy with it and the
applicant refused to sign release of the funds. The applicant was
told that he could
not resume duties until he was found fit to do so
as he had been declared permanently disabled. The applicant regarded
this as
a dismissal and in June 2012 he referred an unfair dismissal
dispute to the CCMA for conciliation.
[8]
A key issue in dispute was whether the applicant consented to the
application for disability. On the one hand the applicant
claimed
that he had not applied for disability and it was a scheme on the
part of the employer to get rid of him due to his HIV
status, brought
about by the HR officer completing and submitting the forms without
his consent. In line with this contention he
claimed that the
employer informed him that he could not work for Metropolitan bus as
he would infect the other drivers. On the
other hand, he claimed that
he had applied for temporary disability and he had not understood,
nor had it been explained to him,
that he was in fact applying for
permanent disability, and that this was differential treatment on the
basis of his HIV status,
amounting to discrimination. This latter
version was, in particular, contained in the evidence of the
applicant’s brother.
A third version on the part of the
applicant was that, when he completed the forms, he thought he was
being given the option of
alternative employment in a clerical
position.
[9]
The difficulty with the above contentions and the evidence presented
in support of them is that they are mutually exclusive.
If he applied
for disability, albeit thinking that it was for temporary rather than
permanent disability, then there is no question
that he intended to
make the application and the employer cannot in the same breath be
accused of fraudulently applying on his
behalf and without his
knowledge. Nor can it be said that he was being given an alternative
position. These contradictory contentions
resulted in a number of
inconsistencies in the applicant’s own evidence and between his
evidence and that of his brother.
Application
of the law
[10]
The applicant claimed both unfair discrimination and an automatically
unfair dismissal. These are related but different
claims even if they
arise from the same set of facts. Unfair discrimination is claimed in
terms of section 6, read with section
10, of the Employment Equity
Act whereas an automatically unfair dismissal is claimed in terms of
section 187(f) of the Labour
Relations Act. Both disputes were
referred to the CCMA for conciliation.
[11]
The first question to determine is whether the applicant was treated
differently because of his HIV status. Section
6(1) of the EEA
provides that:
(1)
No
person may unfairly discriminate, directly or indirectly, against an
employee,
in
any employment policy or practice
,
on one or more grounds, including … HIV status ... or any
other arbitrary ground (my emphasis).
[12]
An
employment policy or practice is not defined in the EEA but ILO
Convention 111, which South Africa has ratified, describes
discrimination
as -
(a) any distinction,
exclusion or preference made on the basis of race, colour, sex,
religion, political opinion, national extraction
or social origin,
which has the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation;
[13]
The basis on which he claimed unfair discrimination were not clearly
set out in the applicant’s statement
of claim, but it emerged
from the evidence that he claimed differential treatment because of
his HIV status in four respects:-
1) by being presented
with the option of applying for disability without sufficient
counseling when he could simply have been given
leave while he was
ill;
2) because the employer
failed to visit him in hospital and send flowers and fruit as it did
for other ill employees;
3) the employer tricked
him by applying for disability on his behalf which he did not consent
to in order to get rid of him; and
4) the employer made his
return to work conditional on being declared fit to work whereas
other employees who had been sick could
simply return to work when
their doctor said they were fit to do so and they are not required to
undergo a medical examination.
This was the same basis on which the
applicant rejected an offer of reinstatement made in August 2012.
[14]
As regards the first, I accept the employer’s evidence that the
HR officer who informed him of the option of applying
for disability
was not aware of his HIV status at the time and it could therefore
not have been a basis for differentiation. In
any event, applying for
disability was clearly presented as an option as he did not even take
the forms with him that day.
[15]
As regards the second contention, according to the evidence the
occupational nurse did in fact visit him. But even if the employer
failed to visit and bring flowers, this is not an employment policy
of practice in the meaning of section 6 “
which
has the effect of nullifying or impairing equality of opportunity or
treatment in employment or occupation”. Visits
in hospital and
gifts of fruits of flowers are nice touches on the part of an
employer, and they demonstrate concern for the sick
employee, but
they cannot be regarded as practices that, if not done, are
discriminatory. In any event,
there
is no evidence that the reason for not visiting him was his HIV
status as this had not been disclosed to the employer at the
time he
was in hospital (in October) and his status was only disclosed in
January 2012 when his treating specialist completed a
report for the
purposes of the disability application.
[16]
As regards the third contention, this contradicts irreconcilably with
the first contention and the evidence presented in court.
I have
found that the applicant was not tricked into applying for permanent
disability or that the application was made without
his knowledge or
consent.
[17]
As regards the forth contention, this goes to the essence of the
claim of unfair dismissal which is dealt with below. However,
I
accept the employer’s evidence that it could not allow a bus
driver who had been declared permanently disabled (and was
still sick
at the time, being end of March 2012) to resume his duties driving a
bus with responsibility for the safety of members
of the public.
Similarly, the offer of reinstatement made by the employer in July
contained the same condition which was utterly
reasonable in the
circumstances. In any event, the offer of reinstatement occurred
after the applicant referred a dispute to the
CCMA claiming he had
already been dismissed and as such it cannot found differentiation
that he alleges prior to, and giving rise
to, his termination of
employment.
[18]
Section 11 of the EEA provides:
(1)
If unfair
discrimination is alleged on a ground listed in section 6(1) the
employer against whom the allegation is made must prove,
on a balance
of probabilities, that such discrimination -
(a)
did not
take place as alleged; or
(b)
is rational
and not unfair, or is otherwise justifiable.
[19]
Clearly the employer bears the onus of proving, in this case, that
unfair discrimination did not take place as alleged. For
the reasons
given above I am satisfied that the respondent has discharged this
onus and discrimination did not take place as alleged.
[20]
I turn now to consider whether the applicant was dismissed. He
claimed he was dismissed at the meeting of 27 March 2012 when
he
refused to sign release of the disability payment and he was told
that he could not continue to work as a bus driver because
he would
infect other passengers. I accept the evidence of the employer that
he was in fact told that, having been declared permanently
disabled;
he could not be allowed to resume duties until he was fit to perform
his duties as a bus driver, a position requiring
medical fitness due
to the responsibility for the lives of members of the public.
[21]
If at the end of March 2012 the applicant had been fit to resume work
(which, according to his application for condonation
for late
referral to conciliation, he was not) he could have taken the
necessary steps to show that he was fit to work. He could
also have
engaged with Sanlam to reverse the decision regarding his disability
application and the approved payment. The bottom
line is that he was
not dismissed, but disallowed from resuming duties due to his
successful application for permanent disability
benefits.
Accordingly, the applicant’s claim that he was dismissed fails.
[22]
The applicant did produce a doctor’s certificate in July 2012
stating that he was fit to resume his duties. But at that
stage the
dismissal was already alleged and the employer’s failure to
allow him to resume duties at that stage, and whether
that amounted
to dismissal, is not the dispute before me. Even so, in August 2012
the employer made an offer to reinstate him subject
to his being
declared fit to work after a medical assessment (which offer was with
prejudice in terms of Labour Court rule 22A)
but this he rejected.
[23]
The applicant is now destitute, having lost both his employment and
the disability payment. Whether it was because he took
poor advice
from family members or because he regretted applying for disability,
or some other reason it is impossible to discern,
he is, sadly, the
master of his own misfortune. The applicant was represented bro bono
and, misguided as he was in pursuing his
claims, I do not believe it
would be fair to allow costs to follow the result.
[24]
In conclusion the applicant was not unfairly discriminated against on
the basis of his HIV status, and he also failed to establish
the
existence of a dismissal.
Order
[25]
I make the following order:
1.
The
applicant’s claim of unfair discrimination is dismissed.
2.
The
applicant’s claim of automatically unfair dismissal is
dismissed as he failed to establish the existence of the dismissal.
3.
There is no
order for costs.
_________________
Everett
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Mr N Kubayi.
Instructed
by:
Noveni Eddy Kubayi Incorporated.
For
the Respondent:
Ms H Stritjdom.
Instructed
by:
Helena Strijdom Attorneys.