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[2018] ZALCCT 17
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Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17; (2018) 39 ILJ 2024 (LC) (16 May 2018)

IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C678/14
In
the matter between:
OCKERT
JANSEN
Applicant
and
LEGAL
AID SOUTH AFRICA
Respondent
Heard:
26 June 2017
Delivered:
16 May 2018
Summary:
A dismissal of an employee who suffers from a mental condition, of
which
the
employer is aware, for misconduct in circumstances where the acts of
misconduct are inextricably intertwined with the employee’s

conduct constitutes an automatically unfair dismissal and unfair
discrimination.
JUDGMENT
MTHOMBENI,
AJ:
Introduction
[1]
This application
concerns the following two claims:
1.1.
An automatically unfair dismissal claim in terms of Section 187(1)
(f) of the Labour Relations
Act
[1]
(“the LRA”). The applicant claims that the reason for his
dismissal is that the respondent unfairly discriminated against
the
applicant on the ground of a disability and/or an analogous arbitrary
ground; and/or
1.2.
An unfair discrimination claim under Section 6 of the Employment
Equity Act
[2]
(“the EEA”),
the applicant claiming that the respondent unfairly discriminated
against the applicant on the ground of
disability or an analogous
ground.
Factual
Background
[2]
The applicant was
employed at the respondent as a paralegal, with effect from 2 March
2007. He held this position throughout his
employment at the
respondent and was based at the Riversdale satellite office.
[3]
On or about 14 November
2013, the respondent issued a notice to attend a disciplinary
enquiry, dated 7 November 2013, to the applicant
calling him to
answer to the following charges of misconduct:
“
Charge 1
Absence from duty without permission
in that you failed to report for duty on the following days without
the necessary authorisation
from management:30 August 2013;
2,9,10,20,30 September 2013; 1,4,7,11,14,15,21,22,23 October 2013;
and 5 November 2013 (a total
of 17 working days);
Charge 2
Transgression of Legal Aid South
Africa’s rules, regulations, policies and procedures in that
you failed to inform your manager
of your absence before 07h30 on the
following 30 August 2013;2,9,10,20,30 September 2013;1,4,7,11,1521,22
and 23 October 2013;and
4 and 5 October 2013;
Charge 3
1
Gross insolence in that on 1 October 2013, and in the presence of Mr
Tebogo Choane, the Labour
Relations Manager, you turned your back in
a disrespectful manner and walked away while Mr Pieter Terblanche,
your manager and
the JCE of George JC, was engaging with you about
your absence from work on 30 September 2013 and on 1 October 2013.
You further
uttered words to the effect that he should fire you in
the presence of Mr Tebogo Choane, the Labour Relations Manager.
2
On 2 and 3 October 2013, you were contacted by Mr Mark Nicholls, the
SPA, and Mr Walied Sait,
the Admin Manager of George JC, enquiring
why you failed to report for duty and you told both of them that you
were waiting for
your dismissal letter from Legal Aid South Africa
and unemployment insurance fund forms as you no longer wished to work
for Legal
Aid South Africa anymore; and
Charge 4
Refusal to obey a lawful and
reasonable instruction in that on 10 October 2013 you refused to
conduct a prison visit at Mossel Bay
Youth Correctional Centre after
being specifically instructed to do so by your manager, Mark
Nicholls.
[4]
The disciplinary
enquiry was held on 20 and 21 November 2013. The chairperson found
the applicant guilty on all the charges and
recommended that that the
applicant be summarily dismissed.
[5]
On 7 February 2014, the
respondent requested the applicant to make representations as to why
the recommendation should not be implemented.
On 13 February 2014,
the applicant submitted written representations to the respondent. On
24 February 2014, the respondent confirmed
the applicant’s
summary dismissal.
The
evidence
[6]
I had ruled that the
respondent had a duty to begin and the applicant had an evidential
burden in respect of his claims. The respondent
closed its case
without leading any evidence. The applicant and Ms Rolene Farre
(“Farre”) testified and the respondent
did not call any
witnesses. The following constitutes the uncontested testimony of the
applicant and Farre.
[7]
The applicant was an
excellent worker, always made an extra effort to help the
respondent’s clients and received performance
awards for most
of his employment at the respondent. He was appointed a brand
ambassador for the respondent.
[8]
On 3 February 2010, Mr
AC Nel, the Deputy Minister of Justice and Constitutional Development
at the time, appointed the applicant
as the vice-chairperson of the
Small Claims Court Board.
[9]
Around 7 April 2010,
the applicant consulted Dr Conradie to attend to an open wound on top
of his eye following a fall. During the
consultation, the applicant
mentioned medical problems that he could not understand. Dr
Conradie’s diagnosis was that he
probably suffered from a major
depression, referred him to hospital and prescribed anti-depressants.
[10]
Dr Conradie issued a
medical certificate, which the applicant submitted to the respondent,
stating that the applicant displayed
symptoms that relate to a major
depression and he had referred him to hospital for counselling and
treatment.
[11]
Afterwards, the
applicant approached Walied Sait (“Sait”), the
administration manager at the time, and requested to
be put on the
respondent’s wellness programme. Sait agreed and the applicant
went to FAMSA at Mossel Bay where she consulted
one Ms Du Preez, a
social worker.
[12]
On 17 November 2011,
the applicant consulted Dr Small whose diagnosis indicated that the
applicant had a depression with high anxiety.
Dr Small gave the
applicant a medical certificate which the applicant submitted to the
respondent.
[13]
On 29 August 2012, the
applicant addressed an email to Sait and informed him about his
personal and work problems which resulted
in him being treated for
depression.
[14]
On 3 September 2012,
the applicant attended at the Oudtsthoorn Divorce Court as at that
time he had separated from his wife. Mr
Pieter Terblanche
(“Terblanche”), the applicant’s manager and Justice
Centre Executive at the respondent, appeared
on behalf of the
applicant’s wife without informing the applicant beforehand as
required by the respondent’s policy.
[15]
This incident
exacerbated the applicant’s condition, for he considered
Terblanche’s action as constituting a conflict
of interest. The
applicant viewed Terblanche’s conduct as amounting to a
betrayal, thus aggravating his mental condition.
[16]
Eventually, Sait
arranged for the applicant to consult Farre, a clinical psychologist,
whom the applicant consulted for four sessions.
Farre submitted a
report, dated 18 October 2012, to the employer advising that the
applicant carried a lot of frustration and displayed
symptoms of a
burnout; the incident involving Terblanche resulted in a lack of
trust and the applicant felt betrayed; and this
issue needed
resolution as soon as possible to enable the applicant to continue
working within a positive environment. The applicant
made attempts at
meeting with the respondent to discuss the matter, but to no avail.
[17]
On 18 October 2012, the
applicant addressed an email to Amanda Clark, the National Human
Resources Executive, advising her that
management at the respondent
had triggered his condition resulting in him consulting a
psychologist.
[18]
On 23 October 2012, the
applicant addressed a letter to Ms V Vedalankar, the Chief Executive
Officer, and informed her about differential
treatment by the
management and the resultant depression. However, there was no
response.
[19]
At this juncture, the
applicant’s emotional and mental condition had deteriorated to
such an extent that he would, as his
coping mechanism, disengage from
everything and lock himself up in his room for days.
[20]
After the applicant’s
divorce was finalised, a maintenance order required that the
respondent deduct an amount from his salary
on the 15
th
day of every month and to be paid over to the Maintenance Court in
Oudtsthoorn. However, while the applicant’s payslip indicated

that the money had been deducted, it never reached his former wife
timeously. Consequently, the applicant’s children were
deprived
of necessities such as food and clothing. The applicant had to send
money out of his own pocket while they were waiting
for the
respondent to make a transfer to court.
[21]
Considering that the
applicant had always taken good care of his children, to see his
children suffering affected him badly and
worsened his mental
condition. As a result, he was put on anti-depressants and his dosage
was increased.
[22]
Around August 2013, the
respondent did not give the applicant a performance bonus and notch
increase because he had been issued
with a final written warning in
the previous year.
[23]
This, coupled with the
applicant’s grievances relating to overtime payment and
maintenance order payment delays, aggravated
the applicant’s
mental condition. Consequently, the applicant absented himself from
work for seventeen days for it was difficult
for him to go to work
and properly perform his duties. Upon his return to work, he would
inform Mr Mark Nicholls (“Nicholls”),
his immediate
supervisor that he was could no longer cope with the circumstances he
had found himself in on account of his mental
condition. In response,
Nicholls would just advise him to that the seventeen days absence
from work would be considered as unpaid
leave.
[24]
The applicant’s
condition deteriorated further, resulting in him staying away from
work from 11 October to 18 October 2013.
On 16 October 2013, the
applicant consulted Dr Van Wyk. This time the diagnosis indicated
that the applicant had “
gemoedsteuring
”.
The dictionary meaning for this word is manic depression.
[25]
On 7 November 2013,
Terblanche presented the applicant at his home with a notice to
attend a disciplinary enquiry and a “charge
sheet”. The
applicant told Terblanche that he was aware of his condition, went to
his bedroom and fetched a document which
explained symptoms of
repressive depression and handed it over to Terblanche. Terblanche
read the document, handed it back to the
applicant and asked him to
sign the notice.
[26]
At this stage, the
applicant’s mental condition had worsened to such an extent
that he had effectively lost control over himself,
was acting
erratically and out of character. This could be attributed to his
behaviour for which he was charged respecting gross
insolence and
insubordination as stated in charges 3 and 4, respectively, above. At
the disciplinary enquiry, the applicant admitted
the allegations
levelled against him and raised his mental condition as his defence.
[27]
Prior to receiving the
notice, the applicant had contacted Sibulelo Qhungwana (“Qhungwana”),
a resident clinical psychologist
at the respondent’s national
office, explained to her what he had been going through and asked to
be put on the respondent’s
wellness programme. Following
Qhungwana’s intervention, arrangements were made for the
applicant to consult Farre again.
This time around, the applicant
attended four sessions with Farre.
[28]
On 28 November 2013,
the applicant addressed an email to Nicholls and copied Sait and
Terblanche on it, advising Nicholls that he
had been absent from work
because he had been attending sessions with Farre.
[29]
As per the respondent’s
policy, on 4 December 2013 Farre forwarded a report concerning the
applicant’s psychological
status, including her
recommendations, to Nicholls. The salient aspects of the report are
as follows:
“
In November
of this year Mr Jansen came to see me again. He was in a worse state
than the previous year. He was clearly not coping
with his
circumstances, specifically at work.
Mr Jansen shows
intense symptoms of a reactive depression. He shows signs of burnout.
He tries to avoid any negative connotation
that enhances his state of
mind. He is on related prescribed medication to help relieve the
symptoms. He shows diminished interest
in almost all activities, he
has no tolerance re (sic) frustration, his mood is greatly affected,
his emotional control is limited,
and he has diminished appetite and
diminished sleep. His ability to cope and function is poor and
limited. This state of mind paralyses
his whole day to day
functioning.
I must stress that
Mr Jansen is close to an emotional breakdown. The behaviour he shows
reflects his state of mind. He seems to
avoid all possible stressors
there for (sic) the absence from work. I am concerned for his
rational thought processing that seems
to be stuck in his depressive
state of mind.
I would recommend
that Mr Jansen be granted sick leave for a considered amount of time.
He needs to divorce himself from work and
try to refocus and
prioritise his life. Therapy alone is not enough. His resources for
impulse control seems (sic) limited therefore
he needs timeout. This
is of great importance. Please take note.”
[30]
Ms Ronel Arendse
(“Arendse”), the Justice Executive at the Bellville
Justice Centre, chaired the disciplinary enquiry.
Arendse rejected
the applicant’s defence on the basis that there was no medical
evidence corroborating his version that he
had suffered from reactive
depression and that at that stage she was involved in a disciplinary
enquiry for misconduct and not
incapacity.
[31]
On 9 December 2013,
following an adjournment on 21 November 2013 the applicant submitted
Farre’s report to Arendse but she
refused to consider the
report stating that it would be prejudicial to the respondent to
re-open the matter.
[32]
Prior to the
confirmation of his dismissal, the applicant submitted to Patrick
Hundemark, the Chief Legal Executive, Farre’s
report and other
medical certificates in addition to his representations. Hundemark
concluded that:
“
Having
regard to the evidence that was led before your disciplinary hearing
in totality, there is no concrete evidence before me
to conclude that
your alleged ill-health has the effect you presented. Accordingly,
this defence is dismissed.”
[33]
Afterwards, on the
strength of Farre’s report the applicant applied for sick leave
as per the respondent’s policy on
temporary incapacity, but the
respondent refused to grant him such leave notwithstanding that the
applicant still had eighteen
days from his leave cycle to his credit.
During January 2014, the applicant consulted Dr Van Wyk as he was no
longer coping at
work. Dr Van Wyk diagnosed him with major depression
and booked him off work from 15 to 31 January 2014.
[34]
At the time of these
proceedings, the applicant was still receiving continuous treatment
for depression and using anti-depressants
and sleeping medication.
The dismissal has worsened the applicant’s emotional and mental
status. He has not been employed
since then and on two occasions
received, upon certification that he suffers from mental illness,
social grants on the basis of
his disability. The applicant had, at
the time of these proceedings, to reapply for a disability grant
which would come to an end.
[35]
Moreover, the
applicant’s personal circumstances have deteriorated in that he
had been evicted from his rental accommodation
and was at the time of
this hearing homeless and living in a friend’s office in town.
His children have been affected psychologically
and academically, for
he could no longer attend to their financial needs. In particular,
the applicant’s son could not continue
with his studies because
the applicant could not afford accommodation for him, owing to his
impecuniosity. The applicant’s
daughter had to undergo
counselling and was not performing well at school as she used to
prior.
Evaluation
[36]
At the outset, it is
apposite to address the application for absolution from the instance,
which was launched at the conclusion
of the applicant’s case,
by Mr Du Preez for the respondent. However, Mr Du Preez did not
request that a ruling be made at
that stage and suggested that the
issue could be addressed at the argument stage.
[37]
Mr
Du Preez, contended that the applicant had failed to make out a
prima
facie
case and, therefore, the respondent could not be required to rebut
anything.
[3]
It is my considered
view that, as it shall be illustrated below, there is no merit in the
application for absolution from the instance.
[38]
This
issue was dealt by this court in
Janda
v First National Bank
[4]
where Van Zyl AJ, faced with an absolution from the instance
application in a matter concerning an automatically unfair dismissal

claim, stated that:
“
Accordingly,
and by reason of the fact that the overall onus lies with the
respondent, it would be incorrect to accede to the application
from
the instance, either at this stage of the proceedings, or later. As a
rule, absolution from the instance will not be granted
where the onus
rests on the defendant (the respondent in the instant matter) on one
or more of the issues.”
[39]
I now turn to the
merits of the dispute. It is common cause that the applicant did not
dispute that he had acted as alleged by the
respondent. He, however,
maintained that his depression was the actual reason for his
dismissal. During the course of his disciplinary
enquiry the
applicant submitted proof of his mental condition which the
respondent declined to consider, without challenging its

authenticity.
[40
The applicant at all
material times suffered from reactive depression, a mental condition,
which was triggered by stress in the
workplace, particularly the
incident concerning Terblanche when he represented the applicant’s
estranged wife at court.
[41]
The applicant’s
condition could be very destructive if left unchecked and untreated.
The applicant was treated for his condition
as evidenced by the
medical certificates that he had submitted to the respondent. While
the respondent purported to question their
authenticity in these
proceedings, the respondent had accepted them without question at the
time.
[42]
At the time the
applicant committed the acts of misconduct for which he had been
dismissed, he was suffering from his condition
and was using
medication. The respondent, despite denial, was aware of the fact
that the applicant undergoing medical treatment
for his mental
condition as illustrated by the testimony of the applicant and Farre.
[43]
In
my view, it follows that the respondent had knowledge that the
applicant was a person with a disability. For this reason, the

respondent was under a duty to reasonably accommodate him. The
respondent failed to comply with its duty in this regard. Instead
of
dismissing the applicant for misconduct, the respondent had a duty to
institute an incapacity enquiry.
[5]
Considering that the respondent had been made aware of the
applicant’s condition, the respondent in deciding to dismiss
the applicant did not have any regard to the circumstances under
which the infractions happened and the effect of the applicant’s

condition upon his conduct.
[44]
Section 1 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.”
It follows
that the condition suffered by the applicant is not consistent with
this definition.
[45]
This
notwithstanding, in my view it instructive to refer to
New
Way Motor and Diesel Engineering (Pty) Ltd v Marsland
[6]
where this court stated that:
“
It is not
strictly necessary to decide whether the concept of ‘disability’
as set out as a ground in s 187 (1) (f) describes
the condition
suffered by the respondent. The uncontested evidence of the
respondent supported by a letter from his psychiatrist
does support
such a conclusion in that he had suffered from depression. The
description of depression is also set out in his statement
of case.
Depression is a form of mental illness; see Diagnostic and
Statistical Manual of Disorders IV. But, even were his condition
not
to be considered a form of disability as set out in s 187 (1) (f),
unquestionably the discrimination suffered by respondent
as a result
of his ‘mental health problem’ had, in the words of Stein
AJ,’the potential to impair the fundamental
dignity of that
person as a human being or affect him in a comparably seriousness
manner.”
[46]
In my view, the conduct
of the respondent in ignoring the applicant’s condition and
deciding to dismiss him in the circumstances,
when viewed objectively
against the applicant’s depression, had potential to impair the
applicant’s fundamental human
dignity and, accordingly, falls
within the grounds envisaged by Section 187 (1) (f) of the LRA.
[47]
In
SACWU
v Afrox Ltd
[7]
,
in dealing with an automatically unfair dismissal in terms of Section
187(1)(a), this court enunciated the basic principles applicable
for
determining whether or not a dismissal is automatically unfair. This
court stated:
“
The enquiry
into the reason for the dismissal is an objective one, where the
employer’s motive for the dismissal will be merely
one of a
number of factors to be considered. This issue (the reason for the
dismissal) is essentially one of causation and I can
see no reason
why the usual twofold approach to causation, applied in other fields
of law, should not be utilised here (compare
S
v Mokgethi & Others
1990 (1) SA (A)
at 39D-41A;
Minister of Police v Skosana
1977 (1) SA (A) at 34).
The first step is to determine
factual
causation; was participation or support, or intended participation or
support, of the protected strike a sine qua non (or prerequisite)
for
the dismissal? Put another way, would the dismissal have occurred if
there was no participation or support of the strike? If
the answer is
yes, then the dismissal was not automatically unfair. If the answer
is no, that does not render the dismissal automatically
unfair; the
next issue is one of
legal
causation, namely whether such
participation or conduct was the ‘main’ or ‘dominant’,
or ‘proximate’
or ‘most likely’ cause of the
dismissal. There are no hard and fast rules to determine the question
of legal causation
(compare
S v Mokgethi
at 40).
I would
specifically venture to suggest that the most practical way of
approaching the issue would be to determine what the most
probable
inference is that may be drawn from the established facts as a cause
of the dismissal, in much the same way as the most
probable or
plausible inference is drawn from circumstantial evidence in civil
cases. It is important to remember that at this
stage the fairness of
the dismissal is not yet an issue…Only if this test of legal
causation also shows that the most probable
cause for the dismissal
was only participation or support of the protected strike, can it be
said that the dismissal was automatically
unfair in terms of s 187
(1) (a). If that probable inference cannot be drawn at this stage,
the enquiry proceeds a step further”.
[48]
I am of the view that
the test in
Afrox
would apply in determining whether or not a dismissal is
automatically unfair as envisaged by Section 187(1) (f) of the LRA.
[49]
In
Kroukam
v SA Airlink (Pty) Ltd
[8]
this court, while alluding to
Afrox
test, stated:
“
The question
in the present dispute concerned the application of this test. The
starting point of any enquiry is to be found in
Chapter VIII of the
Act (66 of 1995). Thus, if an employee simply alleges an unfair
dismissal, the employer must show that it was
fair for a reason
permitted by section 188. If the employee alleges that she was
dismissed for a prohibited reason, for example
pregnancy, then it
would seem that the employee must, in addition to making the
allegation, at least prove that the employer was
aware that the
employee was pregnant and that the dismissal was possibly based on
this condition. Some guidance as to the nature
of the evidence
required is to be found in
Maund v
Penwith
District Council
[1984] ICR
143
,where Lord Justice Griffiths of the Court of Appeal held at 149
that:
“
[I]t is not
for the employee to prove the reason for his dismissal, but merely to
produce evidence sufficient to raise the issue
or, to put it another
way, that raises some doubt about the reason for dismissal. Once this
evidential burden is discharged, the
onus remains upon the employer
to prove the reason for dismissal”.
[50]
From this perspective,
in my view, the respondent would not have dismissed the applicant had
the latter not suffered from his condition.
His conduct, as alleged
by the employer and for which he was dismissed was inextricably
linked to his mental condition. Differently
put, the applicant acted
in the manner he did because of his mental condition. The most
probable inference to be drawn from the
uncontested evidence led by
the applicant and Farre is that the probable cause for the
applicant’s dismissal was his mental
condition.
[51]
I am convinced that the
applicant has led adequate evidence to indicate that he had suffered
from depression and the respondent
was, throughout, aware of his
mental condition. I am, therefore, satisfied that the applicant has
made out a
prima
facie
case and,
thus, discharged the evidential burden to show that the reason for
his dismissal was on account of his mental condition.
On the
contrary, the respondent, in electing not to produce any evidence,
has failed to discharge the onus to prove the reason
for dismissal
was permissible, as contemplated in Section 191(2) of the LRA. Hence,
an application for absolution from the instance
would not succeed as
it held in
Janda
(supra)
[52]
This
court in
Kroukam
[9]
(supra) went further and stated:
“
In
my view, section 187 imposes an evidential burden upon the employee
to produce evidence which sufficient to raise a credible
possibility
that an automatically unfair dismissal has taken place. It then
behoves the employer to prove to the contrary, that
is to produce
evidence to show that the reason for the dismissal did not fall
within the circumstance envisaged in section 187
for constituting an
automatically unfair dismissal”.
[53]
I am, therefore,
satisfied that the applicant has raised a credible possibility that
the dominant reason for the dismissal was his
mental condition. If my
conclusion in this respect is incorrect, in my view at least the
applicant’s condition played a significant
role or influenced
the decision to dismiss the applicant to a significant extent.
[54]
Mr Du Preez contended
that the applicant has failed to show,
prima
facie
, that he, at
the time of committing the acts of misconduct for which he was
dismissed, suffered from a disability. In my opinion,
there is
uncontested evidence that the applicant had suffered from a mental
condition when he consulted with Farre for the first
time. He stayed
away from work for a period of seventeen days because of his mental
condition and was subsequently charged with
absenteeism. Farre
diagnosed the applicant with reactive depression when he consulted
with her for the second time. For these reasons,
it is highly
probable that the applicant had a recurring mental illness from which
he was suffering at the time he committed the
acts of misconduct for
which he was dismissed.
[55]
The applicant, a
layperson who was unemployed at the time, drafted his own statement
of claim. Mr Du Preez contended that the applicant
did not plead in
his statement of claim that that he was discriminated against or
dismissed because of his alleged mental condition.
While the
applicant’s drafting is inelegant and not a model of clarity,
this notwithstanding, in my view the applicant has,
throughout the
statement of claim, mentioned his disability.
[56]
In
this regard, I share this court’s sentiment in
Maleka
v National Sorghum Breweries
[10]
where it was stated that:
“
While I am
aware that this Court must generally treat pleadings as they are
treated in other superior courts, I am of the view that
in the
present circumstances it would not be in accordance with the
objectives of the Act to place undue technical hurdles before
the
applicant. I accordingly deal with the matter on the basis of the
factual contentions contained in all the pleadings before
me, but
applying the usual principles to determine which averments I should
accept”.
[57]
I agree with Mr Leslie
for the applicant that the respondent knew what case it was expected
to meet in that the parties had complied
with the Judge President’s
Guidelines in respect of discrimination in the pre-trial minute,
which was signed by both parties,
and at which Mr Du Preez was
present. Paragraph 6 of the pre-trial minute states:
“
LEGAL
ISSUES TO BE DECIDED
6.      The
parties agree that, in addition to the factual disputes referred to
above, the following are
the legal issues to be decided by the court
in this matter:
6.1
Whether the applicant suffers from a disability within the meaning of
section 187(10(f) of the LRA and/or section 6, read with section 1,
of the EEA;
6.2
Alternatively, whether the applicant’s alleged mental health
condition
is an analogous ground to one or more of the grounds listed
in section 187(1)(f) of the LRA and/or section 6 of the EEA; …
6.4
Whether the respondent unfairly discriminated against the applicant
on
the ground of disability or an analogous ground within the meaning
of section 6 of the EEA;
6.5
Whether the reason for the applicant’s dismissal was that the
respondent
unfairly discriminated against the applicant on the ground
of a disability and/or analogous arbitrary ground and, as such,
whether
the applicant’s dismissal was automatically unfair
within the meaning of section 187(1)(f) of the LRA…”.
[58]
In
this respect, in
NUMSA
v Driveline Technologies (Pty) Ltd & Another
[11]
this court stated that where a litigant is a party to a pre-trial
minute reflecting agreement on certain issues, our courts will

generally hold the parties to that agreement or to those issues.
[59]
I now turn to the
unfair discrimination claim. Considering that the applicant’s
dismissal was automatically unfair in terms
of Section 187(1) (f) of
the LRA, the test for determining such a dismissal should be
applicable to prove unfair discrimination
within the meaning of
Section 6 of the EEA. It follows that the respondent also unfairly
discriminated against the applicant on
the basis of its policy or
practice which is defined in the EEA as including,
inter
alia
, dismissal.
Relief
[60]
The applicant seeks
reinstatement with retrospective effect. Considering that the
respondent has not produced any evidence to show
why reinstatement
should not be ordered, this court is bound to order reinstatement as
a primary remedy in terms of Section 193
(1) (a) of the LRA.
[61]
This court, in
exercising its discretion with regard to the retrospectivity of a
reinstatement order should ensure that the respondent
is not unfairly
financially burdened. There is no evidence to show that there are
factors that would persuade this court not to
order reinstatement
with full retrospectivity.
[62]
Concerning the unfair
discrimination claim, in terms of Section 50(2) of the EEA this court
has the following powers:
“
If the
Labour Court decides that an employee has been unfairly discriminated
against, the Court may make any appropriate order that
is just and
equitable in the circumstances, including-
(a)
payment of compensation by the employer to
that employee;
(b)
payment of damages by the employer to that
employee”.
[63]
In
South
African Airways (Pty) Ltd v Jansen Van Vuuren & Another
[12]
this court held:
“
The purpose
of an award of damages for patrimonial loss by means of a monetary
award, is to place the claimant in the financial
position he or she
would have been in had  he, or she, not been unfairly
discriminated against. This is the common purpose
of an award of
damages for patrimonial loss in terms of South African law in both
the fields of delict and contract. In the case
of compensation for
non-patrimonial loss, the purpose is not to place the person in a
position he or she would have otherwise been
in, but for the unfair
discrimination, since that is impossible, but to assuage by means of
monetary compensation, as far as money
can do so, the insult,
humiliation and indignity or hurt that was suffered by the claimant
as a result of the unfair discrimination”.
[64]
Considering that this
court has concluded that reinstatement with full retrospective effect
would be the most appropriate remedy
for the automatically unfair
dismissal, it would not be just and equitable to order damages for
patrimonial loss. Such reinstatement
would place the applicant in a
position he would have been in, but for discrimination. Put
differently, it would put an onerous
financial burden on the
respondent to award damages twice.
[65]
There is uncontested
evidence that the respondent had ignored reports on the applicant’s
mental condition, failed to conduct
a capacity enquiry and to
accommodate him. Moreover, the applicant had been evicted from his
rental homes following his dismissal
and his children suffered
because of his impecuniosity. In my view, it would be just and
equitable to order compensation as a
solatium
for the distress the applicant endured on account of the unfair
discrimination by the respondent. The compensation award must,

therefore, serve as a deterrent.
[66]
There is no evidence of
how a compensation award would impact the financial position of the
respondent. This could be ascribed to
the respondent’s decision
to not call any witnesses at all.
[67]
With regard to costs,
the applicant was successful in establishing the existence of an
automatically unfair dismissal and unfair
discrimination. For this
reason, it is apposite that a costs order be made against the
respondent on a party and party scale, including
the costs of
counsel.
Order
[68]
In the result, I make
the following order:
1.
The application for
absolution from the instance is dismissed;
2.
It is declared that the
dismissal of the applicant was automatically unfair in terms of
Section 187(1) (f) of the LRA;
3.
It is declared that the
respondent unfairly discriminated against the applicant in terms of
Section 6 of the EEA;
4.
The respondent is
ordered to reinstate the applicant with full retrospective effect;
5.
The respondent is
ordered to pay the applicant compensation equivalent to six month’s
salary, calculated at the applicant’s
rate of remuneration on
the date of dismissal;
6.
The respondent is
ordered to pay the applicant’s costs, including that of
counsel.
___________________
Mthombeni
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
Applicant
: Mr GA Leslie
Instructed
: Cliffe Dekker
Hofmeyr.
For
respondent        : Mr T Du Preez,
Instructed
by
: Everinghmas Attorneys.
[1]
66
of 1995
[2]
55
of 1998
[3]
Bandat
v De Kock and Another
(JS832/2013
[2014] ZALCJHB 342 ;( 2015) 36 ILJ 979 (LC),
[4]
[2006]
12 BLLR 1156(LC)
[5]
Standard
Bank of South Africa v CCMA
[2008]
4 BLLR 356 (LC).
[6]
(2009)
30 ILJ 2875 (LAC) at para 24.
[7]
(1999)
20 ILJ 1718 (LAC) para 32.
[8]
[2005]
12 BLLR 1172
(LAC) at para 27.
[9]
See para 28.
[10]
[1999]
5 BLLR 495
(LC) at para [9]
[11]
[2000]1
BLLR 20 (LAC) at para 83.
[12]
(2014)
29 ILJ 2774 (LAC) at para 80.