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[2021] ZAEQC 2
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Reddy v South African Revenue Services and Another (EQ19443 / 21) [2021] ZAEQC 2 (21 July 2021)
EQUALITY
COURT IN PRETORIA
SITTING
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA
Case
Number:
EQ19443
/
21
NOT
REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
Date:
12 July 2021
In
the matter between:
PRIYEN
REDDY APPLICANT
and
SOUTH
AFRICAN REVENUE SERVICES FIRST
RESPONDENT
MARGARET
LEWIS SECOND
RESPONDENT
JUDGMENT
KUBUSHI
J,
Delivered:
This judgment was handed down
electronically by circulation to the parties' legal representatives
by e-mail. The date and time for
hand-down is deemed to be 10h00 on
12 July
2021
INTRODUCTION
[1]
The complainant, PRIYEN REDDY ('"Mr
Reddy”) instituted procee
d
i
ngs
before the Equality Court in terms of section 20 of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4
of 2000 ("the
Equality Act") read with Regulation 6 (1) thereof. The gravamen
of the complaint is that Mr Reddy has been
unfairly placed on early
retirement due to ill health by his erstwhile employer, the South
African Revenue Services (“SARS"),
because of his
disability. In essence his
complaint
is that
in
placing
him
on
early
retirement
SARS
contravened Section
9
read
with
hem
23
(1)
of
Schedule
6
to
the Constitution of the Republic of South
Africa, 1996 ("the Constitution"). Mr Redd y, as such,
claims that his rights
as a person with disability stipulated in the
Constitution have been violated by SARS.
[2]
SARS
has
not
filed
any
affidavit
or
response
to
Mr
Reddy's
complaint
and
has also, not filed
heads of argument even when asked to do so. On perusal of the
documents filed by Mr Reddy it is evident that
he has complied with
the requirements of the Equality Act and the Regulations in placing
this matter before the Equality Court
It is for this reason that I
opt to proceeded with the matter in
SA
R
S
'
absence.
[3]
This court directed that Mr Reddy' s
complaint be determined on the papers filed on Caselin
e
s
without
oral
hearing
as pro
vided for in this
Division's Consolidated Directives re Court
Operations during the National
State
of
Disaster issued
by
the Judge President on 18 September 2020.
FACTUAL MATRIX
[4]
Mr Reddy was employed by SARS since 12
January 2015 as an In bound Contact Centre Agen
t (Employee number00013981)
on Grade
3b
performance Level.
[5]
In a letter dated 21 February 2018 Mr
Redd y
was
in formed that he has been declared as a person with disability by
SARS. The name of the disability as recorded in Mr Reddy's
declaration of disability form is
'
Depression and Generalised Anxiety Disorder’.
And
the nature of the disability is recorded as
'Mental
illness
-
Severe
depressive episodes without psychotic symptoms and panic
disorder'.
[6]
In October 2019, due to an incident that
occurred at work, Mr Reddy was
suspended
from employment. The reason for suspension is recorded in a letter
sent to
Mr
Reddy
by
SARS
dated
30
October
2019,
as
being
that
he
'mode
threatening remarks insinuating
violence and mode racial remarks to other
employees.
Furthermore, the employer believes your presence at the workplace
poses a safety risk
to
otheremployees.'
[7]
Mr Reddy was referred to SAR$' HRM for an
independent assessment to determine his health status and current
level of functionality.
The HRM found that Mr Reddy has chronic
mental/behavioural disorder, complicated by comorbidity
of Axis 1 pathology and intermittent
compliance; has significant cognitive impairment precluding him from
meeting the open labour
market standards of his own
or
an alternative occupation; and that the
sick leave usage correlates with chronic medical condition.
susceptible to relapse. The
HRM, consequently, recommended that Mr
Reddy be considered fo
r
Ill
Health Retirement Benefits based on his mental status and
perpetuating nature of his symptom profile.
[8]
SARS decided on the basis of this
recommendation to place Mr. Reddy on early
reti rement
due
to
ill
health,
that
is,
he
was
medically
boarded. Mr Reddy's appeal of
S
A
R
S
'
decision was turned down on the basis that
'There
is
no
new medical
evidence
that has been submitted
that
would warrant
a
different
outcome.’
[9]
Not satisfied with the outcome, Mr Reddy
referred the complaint to the Commission for Conciliation, Mediation
and Arbitration ("CCMA”)
Where, on the basis of the
formulation of his claim, he was informed that discrimination cases
are not handled in the CCMA but
should be referred to the Labour
Court for arbitration. Mr Reddy launched proceedings in the Labour
Court but it is not apparent
from the papers filed what eventually
happened in those
proceedings.
Be as it may, on 19 April 2021 Mr Reddy
approached the Equality Court for relief.
APPLICABLE LAW
[10]
The purpose of the Equality Act is to give
effect to section 9 read with item 23 (1) of Schedule 6 to the
Constitution, so as to
prevent and prohibit unfair discrimination and
harassment; to promote equality and eliminate unfair discrimination;
to prevent
and prohibit hate speech; and to provide for matters
connected there with.
[11]
Section 20 (3)
(a)
of the Equality Act stipulates that a
presiding officer of the Equality Court concerned should decide
whether a matter instituted
in the Equality Court, should be heard in
that court or whether it should be referred to another appropriate
institution, body,
court, tribunal or other forum, which in the
presiding officer's opinion, can deal more appropriately with the
matter in terms
of that alternative
forum's
powers
and
functions.
[12]
Section
13
of
the
Equality
Act
envisages
a
two
stage
enquiry,
the
first
part
of
which under s 13 (1) is for the complainant to demonstrate, on the
thin threshold test of
prima facie
proof, that there was a discriminatory
act or omission. If such discrimination is found to have taken place,
the second stage is
to enquire whether such discrimination is unfair
based on any of the prohibited grounds in terms of the Equality Act
[13]
I, consequently,
have
to first determine whether on the
papers before me, a
prima
facie
has
been
made out.
[14]
The
test for determining whether a claim based on
unfair
discrimination should succeed was laid down by the Supreme Court of
Appeal in
Safi
v National Commissioner of the South African Police Service and
Others,
[1]
wherein
that court expressed the following:
“
[10].What
needs to be established at the commencement of the enquiry is whether
the policy or practice on which the challenged decision
was based,
Differentiates between people. If it does, whether the
differentiation bears a rational connection to a legitimate
government purpose. If it does, the policy
or
practice may or may not, depending on
the circumstances
of a
particular
case, violate
section
9 (3)
of
the Constitution.”
ANALYSIS
[15]
Mr
Reddy brought proceedings before the Equality Court contending that
SARS has unfairly discriminated him on the basis of
his
disability.
[2]
As a consequence
of such unfair discrimination he was placed on early retirement due
to
ill
health.
[16]
In
order to
provide
a
full understanding, section 9 of the Equality Act
[3]
should
be read together with
the
definition of "discri
m
ination
”
[4]
and
"prohibited
grounds"
[5]
in
s 1 (1) of the Equality Act. The act complained of should as a result
impose burdens, obligations or disadvantages on, or withhold
benefits, opportunities or advantages from any
person
on the
ground
of disability.
[17]
It
is
only
necessary
to
show
discrimination
as
defined
in the
Equality
Act,
that is, the
complainant need only establish the elements of discrimination,
namely: an actor omission that may be direct or indirect
that imposes
a burden or withholds a benefit on a
prohibited ground.
[18]
The
element of whether the claim
is
based
on a prohibited ground has clearly been proven in the papers before
me. SARS, as earlier stated has declared Mr Reddy as
a
person
with disability. Discrimination on the basis of disability is one of
the grounds provided
for
in the Equality Act
[6]
What
Mr Reddy ought to further establish is that there has been an act or
omission that may be director indirect that imposes a
burden
or
withholds a benefit.
(19)
Mr Reddy’s complaint is
succinctly set out in the heads of argument as follows:
“
FACTUAL
BACKGROUND
TO
CASE:
1.
I Priyen
Reddy
was employed by South African Revenue
Services since 12 January 2015 as an Inbound Contact Centre Agent
(Employee id 00013981) on
Grade 3b performance
level. I
currently suffer
from
paranoid
Schizophrenia
and
I
decided
to
declare
my
limitations
to
the
Employer
on
14
December
2017
which included nature of my disability which is recurring and likely
to occur again I also reported challenges in the context
of working
environment which included (Conflict with colleagues who
misunderstand my illness and possible related environmental
stress. I
also declared that I am receiving medication and therapy as an
assistive mechanism the proposal for possible reasonable
accommodation would
be
related
to
leave.
2.
My declaration to the employer was accepted
and I received the outcome letter of my declaration on 12 March 2018
and had forwarded
it to the Ops manager at the time James Baloyi on
the
very
same
day, however the employer ignored my declaration and later revealed
during Stage 2 incapacity enquiry that he did not know
I have a
disability.
3.
I was subjected to unfair discrimination
and bullying by co-workers which I do relate as interpersonal issues
the constant harassment
was detrimental to my health and exacerbated
my already fragile condition , the situation was becoming unbearable
there was
hardly
or no intervention by management t to relieve me of such
environmental stressors. I put in a grievance for Charmaine Pretorius
on 20 September 2019.
4.
The bullying and harassment which occurred
on Wednesday 16 October 2019 resulted in me being suspended on 30
October 2019. The employer
(HRM) relied on assumption
andhears3yevidence that my presence at the workplace poses a threat
to other employees, based on my
disability. On Wednesday 16 October
2019 I approached centre manager Rirhandzu Ndubane in order to assist
me with a formal grievance
to which she Refused in doing act she
automatically subjected me to unfair labour practices. The employer
did not attempt to resolve
the
issue
and did not follow regulations
according
to the Labour Relations Act, section 185.1 was subsequently suspended
and requested to attend a full health assessment
on 18 may 2020 which
I agreed and though
it
was
for
purposes
required
as
investigations
regarding
allegations
against me for the suspension.
5.
The suspension was unreasonably long more
than 12 months there was no disciplinary hearing instead the employer
initiated a
ill
Health Incapacity Stage 2
Enquiry.
The fact that there was no fair disciplinary hearing within 6 months
as regulated by the Labour Relations Act, section
185 leads to
automatically unfair labour practices and the Employer contravened
Section 9 read with item 23(1) of Schedule 6 of
the Constitution of
the Republic
of
South Africa 1996.
6.
The Employer relied on Medical Information
presented by Alexander Forbes, and typed discriminatory unfounded
assumptions directed
at my disability, with the aim of constructively
forcing me to take early retirement due to Ill health as a form of no
fault dismissal.
During the Stage 2 enquiry the Employer alleged that
he did not know that
in
fact I had a disability and accused me of not informing him. I
contended then the declaration was sent on 12 March 2019. The
Employer further admitted the fact that the Stage 1 enquiry had not
been closed prior to initiating Stage 2 enquiry. This fact
is another
deviation of the employer regarding the Labour Relations Act, section
185 as unfair labour practice.
7.
The Employer alleges that I was
accommodated on four instances of extended sick
leave
applications
as
reasonable
accommodation
as
well
as
e
filing
activations.
8.
Extended
sick
leave
is
a
mechanism
available
to
every
ordinary
SARS
employee. I
contended
that
had
the
employer
assisted
me
with
discretionary
leave
as
stipulated in SARS Conditions of Service PAGE 24of 31, there
might have been more opportunity for me to
protect my employment by
doi
ng
this the employer did not follow its own
Conditions of service. The employer deviated from legislation Unfair
Discrimination Act
4 of 2000 as a mended, Tile Employer contravened
Section 9 read with item
23(1)
of
Schedule 6 to
the Constitution of The Republic of South Africa, 1996
.
9.
I contended that the reasonable
accommodation with Extended Sick leave and E Filing activations was
unjust and further exacerbated
my illness resulting in further
anxiety and stress. The accommodation on E filing activations and
extended sick leave had a negative
,effect on my attendance, the
employer was not careful to avoid indirect
discrimination
of
disability
and
the
latter
as
a
resort
to
unfairly
dismiss
me.
The
employer
deviated
from
legislation
Unfair Discrimination
Act
4
of
2000
as
amended.
The
employer
contravened
section
9
read
with
item
23(1)
of
Schedule 6 to the Constitution of The Republic Of
South Africa,1996 .
10.
The
Health
Assessment
Summary
used
to
force
me
into
early
retirement
due to Ill
Health on 12 August 2020 is further discriminatory to an
unjustifiable extent that it discriminates; up unto my family
history
of "mental illness" this fact
amounts to automatically unfair
discrimination by association. The extreme callousness and contents
of
the
document
further
discriminates
by
propagation
and
describes my thought process as
negative
towards
other employees instead of the extent to which I can do my work. My
impairment is described as significant cognitive impairment
the
employer
deviated
from
legislation
Unfair
Discrimination
Act
4
of 2000 as amended. The Employer contravened Section 9, read with
item 23(1) of Schedule 6
to
the Constitution of The Republic Of South
Africa,1996,
11.
There
was
no
extent to which has been taken by the employe.t to adapt the working
environment or alternative placement short of dismissal.
There was no
monitoring or counselling prior to the employer considering
dismissal. The employer deviated from legislation Unfair
Discrimination Act 4 of 2000 as amended. The Employer contravened'
Section 9 read with item 23(1) of Schedule 6 to the Constitution
of
The
Republic of
South Africa,1996.
12.
The Stage 02 Enquiry held on 12 August 2020
Should have been punitive instead of disciplinary. The employer
alleged that the extended
sick leave was a means of reasonable
accommodation, I contended that my absenteeism arose from my
disability and cannot be used
as disciplinary action against me this
can amount to automatically unfair discrimination
of
disability.
the
employer
deviated from legislation Unfair Discrimination Act 4 of 2000as
amended,
13.
My appeal against the no fault dismissal
was turned down for reasons that no new medical evidence was
presented. The employer changed
the word early retirement due to ill
health which is a lump sum pay out or my pension fund into medical
boarding I contended that
proper medical boarding is applied through
the medical scheme where I would still have the advantage of medical
aid in order to
treat my chronic condition, the payment of my pension
benefits is a benefit to any
ordinary
person in employment the employer contravened Section 9 read with
item 23(1) of Schedule 6 to the Constitution of The Republic
Of
SouthAfrica,1996”
[20]
Mr Reddy's complaint stems from being
placed on early retirement due to ill health. This he contends was
done because of his disability.
The genesis of his complaint
therefore is SARS' policy relating to
placement of
SAR'S
employees on early retirement due to ill health. What however does
not come out from Mr Reddy's complaint is that such policy
is
unfairly discriminatory, in that it differentiates between people.
[21]
In essence, the sum total of Mr Reddy's
complaint is that he has not been fairly treated during the process
of his placement on
early retirement due to ill health, and, as such,
was unfairly made to go on early retirement. This is not a case for
unfair discrimination
that is envisaged in the Equality Act that
ought to be entertained by this court. A remedy for Mr Reddy in such
circumstances,
if properly formulated,
lies
with the
CCMA
or
the
Labour
Court.
[22]
For the reasons
I
have advanced
here
above,
Mr
Reddy's complaint
is
dismissed. There is no order
as to costs.
E.M
KUBUSHI
JUDGE
OF THE EQUALITY COURT GAUTENG DIVISION, PRETORIA
Appearance
:
Applicant:
SELFREPRESENTED
Respondent:
UNREPRESENTED
Date
of hearing: 12
May 2021
Date
of judgment: 12
July 2021
[1]
[2014]
ZACC 19.
[2]
Section
9 of the Equality Act.
[3]
Subject
to section 6, no person may unfairly discriminate against any person
on the grounds of disability.
[4]
"Discrimination”
Means any act or omission, including a policy, law, rule, practice,
condition or Situation which directly
or indirectly -
(a)
Imposes burdens, obligations or
disadvantages on; or
(b)
Withholds benefits, opportunities or
advantages from any person on one or more or the prohibited grounds.
[5]
"Prohibited
grounds" are
(a)
Race, gender, sex, pregnancy. marital status, ethnic or sociaI
origin, colour,.sexual orientatlon, age, disability, religion,
conscience, belief, culture, language and birth; or ..
[6]
Section
9.