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[2018] ZALCCT 9
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South African Municipal Workers Union obo Damons v City of Cape Town (C306/2015) [2018] ZALCCT 9; [2018] 8 BLLR 829 (LC); (2018) 39 ILJ 1812 (LC) (20 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
C
ase
no: C306/2015
In the
matter between
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
OBO DAMONS
Applicant
and
CITY
OF CAPE
TOWN
Respondent
Heard:
13-14 November 2017; Heads of Argument received 12 December 2017
Delivered: 20 April 2018
Summary:
Unfair discrimination claim; injured firefighter precluded from
advancement through the ranks of firefighters.
JUDGMENT
RABKIN-NAICKER J
[1] This
is an alleged unfair discrimination claim in which the applicant
(Damons) claims that the City’s Advancement Policy
(the Policy)
precludes him from advancing to the position of Senior Fire Fighter.
It is alleged that the application of the Policy
to Damons
discriminates against him on the basis of his disability.
[2]
Damons was permanently injured while on duty in 2010. An incapacity
process was set in motion and completed in January 2013.
Damons was
first transferred to a position in the Fire Service’s Billing
Section in Goodwood and later to his current position
in the Fire and
Life Safety Education Section in Belville. In his current position
Damons performs administrative and educational
work.
[3]
Although he can no longer perform the ‘core’ functions of
a firefighter he retained his designation as a Firefighter
and salary
level, including a 22.8% standby allowance. The City employs Learner
Firefighters, Firefighters and Senior Firefighters.
Advancement is
regulated through the Policy which was published in April 2009.
[4]
In order to advance from the rank of Firefighter to that of Senior
Firefighter, the Policy requires an employee to “Successfully
undergo a practical (physical) assessment as per Service Order –
Section 6, No. 2” which includes the physical application
of
theoretical knowledge.
[5]
The job function of firefighters of all levels is described in job
description forms and includes being physically fit and able
bodied
for the performance of tasks associated with specific key performance
areas of the posts. Damons is not physically fit and
able as required
in these job descriptions and is also not able to perform the annual
physical fitness assessment or the routine
physical drills due to his
disability.
[6]
Ian Schnetler, the respondent’s Chief Fire Officer gave
evidence relating to the job description of Senior Firefighter
which
includes all the physical requirements of the more junior posts and
testified that in addition Senior Firefighters are required
to:
“
carry
out specialized rescue operations…in order to provide an
effective and efficient emergency Fire and Rescue Service”
including the following:
·
Advanced rescue work e.g. urban search and
rescue, high angle and other related functions pertaining to the
profession.
·
Diving rescue (retrieving of bodies from sea,
dams, sewers etc.)
·
Hazardous material incidents (involving chemical
spills, biohazard incidents).
·
Rescue boat operations.
·
Emergency medical services at Basic Life Support
level: consistent with level of training.”
[7]
He testified with reference to the relevant documentation that most
of the physical firefighting and maintenance functions of
a Senior
Firefighter are listed as being required on a daily basis. These
physical requirements are also included in Platoon Commanders
and
station Commanders job description.
[8]
It was Schnetler’s testimony that Damon’s plays no
operational role at present and has not done so since his injury.
In
his view he had not been prejudiced in his career advancement as he
still has a career path with the Admin or Command and Control
function of the Fire and Rescue Service and within the broader
organisation.
[9]
Under cross examination, he conceded that Damons advancement
opportunities were now ‘out of the window’, but qualified
that to be the case in “his chosen career”. He agreed
that Damons’ promotion opportunities have been prejudiced
since
his injury. He was referred to the final incapacity report dated 28
January 2013. It is recorded in the Report that Damons
agreed with
the Management’s outline of his capacity problem but “indicated
that alternative placement would be acceptable
to him as long as
certain requirements of his would remain applicable –
specifically w.r.t. his current remuneration package
as well as
future promotions.”
[10]
It was put to Schnetler that Damons was offered the alternative
placement after the hearing and that it was not reflected in
the
report that management rejected the conditions. He agreed. It was
further put to him that Damons was offered the alternative
placement
taking into consideration the conditions that Damons had put.
Schnetler said he has to agree. He testified however that
the Policy
was already in existence at the time that the Incapacity Report was
written. He agreed that there was no other reason
that Damons was
refused advancement other than his disability but stated that it was
because he was not able to comply with the
physical component of
Advancement Policy.
[11]
Damons testified that he was appointed in February 2005. After his
accident in a fire drill simulation he was finally placed
in Belville
after three incapacity hearings. There was no objection from the
employer that he was still to receive his standby
allowance and to
progress. He considered the statement in the Report emanating from
the third and final capacity hearing regarding
future promotions to
be binding.He had applied for promotion to senior firefighter but the
final outcome was that he was unfit
to contest for that post because
of his injury.
[12]
He stated that the City had destroyed his life and he felt he was
worth nothing. He said he would never have signed the Report
if he
had known his progress was halted. He had done all the courses
necessary to progress to Senior Firefighter. He testified
that lower
and middle management such as Platoon Commander and Station Commander
do not do physical work but oversee the platoon
and may sit next to
the driver.
[13]
Under cross examination, he was asked if the union wrote to
management about the alleged agreement on promotion. He said he
had
no comment. He did not agree that he was not a firefighter any more.
He stated that he was just performing different functions.
He still
went out to fires on standby but didn’t do physical
firefighting. He agreed that he is no longer an active firefighter.
He stated that he wants the City to relax physical requirements of
the Policy so he is not prejudiced. It was put to him that it
cannot
be an obligation on the City to create an administrative stream path
in the Service. Damons said that those working in life
safety
education like himself were still fire fighters. They do practical
demonstrations and evaluations because there is a fire
inspectorate
that runs out of the operations section.
[14]
Mr Conradie for the City argued that the City’s defence
throughout has been that the physical requirement is an inherent
requirement of the job. To determine whether the physical
requirements are inherent requirements for the position of a Senior
Firefighter one must look at what a “firefighter” does.
If a firefighter cannot fight fires, the Fire Service would
not serve
any purpose he submits. It was also emphasised on behalf of the City
that in the determination of whether an inherent
requirement exists,
there is no blanket ban contained in the Policy that excludes Damons
as referred to in the case of
IMATU
and Another v City of Cape Town
[1]
.
In that matter, the question before the Court was whether the City’s
position of a blanket ban on the employment of diabetics
as
fire-fighters amounts to unfair discrimination.
[15]
It was further submitted for the City that Damons is excluded on an
individual basis due to the fact that he cannot pass the
physical
assessment requirement contained in the Policy. The Policy does not
impose a blanket ban on disabled persons becoming
firefighters –
the inherent requirement of physical fitness results in the
exclusion.
[16] The legal case as
pleaded on behalf of Damons is as follows:
“
20.
The application of the Policy to Damons discriminated, and continues
to discriminate, against him on the basis of his disability.
21.
It is alleged that such discrimination constitutes either direct
discrimination, or alternatively indirect discrimination, in
as much
as the Policy is ostensibly neutral yet has the effect of prejudicing
all firefighters with disabilities.
22. The aforesaid
discrimination is unfair, inter alia, because:
22.1
The requirement of a physical assessment is not an inherent
requirement for all employees wishing to be advanced
from the rank of
Fire Fighter to that of Senior Fire Fighter.
22.2
The City was obliged to continue employing Damons in terms of his
current duties, but at the rank of Senior
Fire Fighter.
22.3
The refusal to advance Damons is contrary to the stated purpose of
the Policy itself.
22.4
The application of the Policy to Damons prohibits his further career
advancement and his entitlement to the
benefits of employment within
the City.
22.5
Damons is ultimately treated differently to other employees employed
as Fire Fighters.”
Evaluation
[17]
The argument that the physical requirements of holding a post of
firefighter through the ranks of advancement, are an inherent
requirement of the job, and thus the refusal to appoint Damons into
the position of a senior firefighter does not amount to unfair
discrimination, is problematic. This is because the City reasonably
accommodated
[2]
Damons after his
injury and permanent disability caused by it, and kept him within the
structure laid out in the Policy on the
level of a Firefighter. He is
a Firefighter in terms of his employment. However, he is a
Firefighter, who is denied progression
in remuneration or status
through the ranks.
[18]
In
SA
Airways (Pty) Ltd v Jansen van Vuuren & another
[3]
the Labour Appeal Court considered factors to be taken into account
when a court determines whether discrimination is unfair in
terms of
section 6 of the EEA, stating that:
“
[43]
There is no closed list of relevant factors that ought to be taken
into account when determining the fairness of the discrimination
and
the factors to be considered depends on the facts of the case under
consideration. In Hoffmann, Ngcobo J (as he then was) stated:
'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.
Relevant
considerations in this regard include the position of the victim of
the discrimination in society, the purpose sought
to be achieved by
the discrimination, the extent to which the rights or interests of
the victim of the discrimination have been
affected and whether the
discrimination has impaired the human dignity of the victim.'
[44]
What is clear is that in considering the issue of fairness under the
EEA, the position and interests of the employee and employer
must be
considered and balanced, and that the objectives of the EEA must be
the guiding light in applying a value judgment to established
facts
and circumstances. The determining factor, however, is the impact of
the discrimination on the victim. This is consistent
with the
approach in Hoffmann.
[45]
Unlike in the case of an equality analysis under s 9 of the
Constitution which also allows for a further step, namely a
justification
analysis in terms of s 36 where one is dealing with the
law of general application, the EEA does not allow for justification
of
unfair discrimination. Its language is clearly prohibitive.
Section 6(2) does not contain justifications for unfair
discrimination.
The Act provides that it would not be unfair
discrimination to take affirmative measures consistent with the
purposes of the EEA
or to distinguish, exclude or prefer any person
on the basis of an inherent requirement of a job. They are complete
defences to
an allegation of unfair discrimination. In s 11, the EEA
recognizes that there may be considerations other than those
specifically
referred to in s 6(2) which may render discrimination
fair.
[46]
The employer has an onus to establish fairness on a balance of
probabilities. An enquiry into fairness contemplated in the
EEA will
necessarily involve more than a consideration of the moral issues and
the impact of the discriminatory action on the complainant.
It will
also include a consideration and require a balancing of the defences
raised by the employer for the discrimination as well
as issues such
as proportionality of the measure, the nature of the complainant's
right that he alleges has been infringed, the
nature and purpose of
the discriminatory measure, and the relation between the measure and
its purpose.
[47]
Since the onus is upon the employer to prove the fairness of the
discriminatory measure, it would be incumbent upon it to ensure
that
all the necessary material and evidence is before the court in order
to enable it to make a finding of fairness. As stated
earlier, the
onus is only discharged if fairness is found on a balance of all the
relevant factors and evidence.”
[19]
In this matter, the defence put up by the employer, in essence the
‘inherent requirement of the job’ defence, as
referred to
above, is undermined by its own previous decision to keep Damons in
the Fire and Rescue Service albeit in a position
that does not
require active firefighting. It did so on an individualised basis
after a painstaking series of incapacity investigations.
The City
insisted that the Policy applied to Damons in the proceedings before
this Court. There can be no doubt therefore that
objectively, Damons
is currently employed as a Firefighter despite his inability to
perform certain functions of the role (which
the City submits are an
inherent requirement of the job) because of his disability.
[20]
At issue therefore is the question of whether applying the Policy to
Damons in a way that prevents him from advancement due
to his
disability amounts to unfair discrimination. I take note of the
guidance provided by the Code of Good Practice on Employment
of
Persons with Disabilities
[4]
in
my assessment of whether the City has proved that the discrimination
in question is fair. Clause 7.5 of the Code reads in material
part as
follows:
“
7.5
Terms and Conditions of Employment
7.5.1 An
employer may not-
(a)
employ people with disabilities or,
(b)
retain employees who become disabled, on less favourable terms and
conditions than employees
doing the same work, for reasons connected
with the disability.”
[21]
Applying the law to the evidence before me, there is no question that
the barrier to Damons’ advancement impairs his
dignity. A
particular factor that needs to be considered by the court is that
Damons’ disability arose because of an accident
at work when a
decision was taken to use him, instead of a dummy, during training.
As to the interests of the employer, it did
not raise issues of
financial prejudice as a reason for its stance. It relies on the need
for consistency in the application of
the Policy whose purpose was to
eliminate the inconsistent and unfair application of previous
advancement criteria, before the
various fire stations merged into
the Unicity.
[22]
It is noteworthy that by the time the final incapacity report was
signed by Damons and his employer, it indicated that Damons
injury
was permanent and his work could be adapted “to accommodate his
incapacity.” Further, it records that he: “can
be
transferred to a section in the Fire & Rescue Service that does
not require him to perform the physical functions that he
may not
perform and still add value to the work of the Fire & Rescue
Service…”. This was not a situation, as the
respondent
sought to submit, in which a firefighter was accommodated in the Fire
and Life Safety Section while being rehabilitated.
In all the
circumstances I consider that the city has not met its onus in
establishing fairness on a balance of probabilities.
[23]
The parties did not address the Court on compensation/damages as
claimed for in the pleadings, nor was evidence led on this
claim. I
do not consider an order for costs is apposite in view of the ongoing
relationship between the parties. I make the following
order:
Order
1.
The application by the City of the Fire and Rescue Advancement Policy
to Mr A Damons, amounts to unfair discrimination in terms
of section
6(1) of the Employment Equity Act;
2.
The City is ordered to re-consider Damons’ advancement
application in the light of clause 1 above, by no later than 15
court
days of this Order.
_________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
For
the Applicant: Z. Feni instructed by Qhali
Attorneys
For
Respondent: Bradley Conradie Halton
Cheadle Attorneys
[1]
[2005] 11 BLLR 1084 (LC)
[2]
In
terms of the Employment Equity Act
'reasonable
accommodation' means any modification or adjustment to a job or to
the working environment that will enable a person
from a designated
group to have access to or participate or advance in employment;”
[3]
(2014) 35 ILJ 2774 (LAC)
[4]
GN 1085 in GG 39383 of 9 November 2015