Unfair discrimination on the ground of disability – Employers should proceed with caution to avoid getting “burnt”

01 Nov 2018

Two interesting South African decisions, both dealing with the employment of firefighters, illustrate important principles relating to potential claims where an employee alleges unfair discrimination on the basis of a disability or an analogous ground.

The case of South African Municipal Workers Union obo Damons v City of Cape Town concerned an unfair discrimination claim in which the applicant, Mr Damons, argued that the City of Cape Town’s advancement policy excluded him from advancing to the position of senior firefighter. He argued that the application of the policy to him discriminated against him on the basis of his disability as envisaged in section 6(1) of the Employment Equity Act, 1998 (the “EEA”).

Mr Damons had been employed by the City as a firefighter. He was injured while on duty in an incident that took place in 2010. The result was that he was no longer able to perform the core functions of a firefighter. An incapacity process was followed and, as a result of this process, he was transferred to a position in the fire service’s billing section, and later to a position in the fire and life safety education section. In this position, Mr Damons performed administrative and educational work. Despite Mr Damons not being able to perform the “core” functions of a firefighter, he retained his designation as a firefighter and remained at the same salary level. This included being paid a standby allowance. In effect, instead of being dismissed on the grounds of incapacity, his disability was “accommodated” by his transfer to a position where his disability did not impact on his ability to do his job.

Mr Damons then applied for a promotion to the level of a senior firefighter. He was refused promotion on the basis that he could not meet the required physical fitness standards tests set by the City’s advancement policy. These tests applied to firefighters at all levels. He then alleged that the application of the advancement policy unfairly discriminated against him on the basis of his disability.

The City’s defence in the subsequent litigation in the Labour Court was that meeting the required standard of physical fitness set by the advancement policy was an inherent requirement of the job.

The court rejected this argument. It argued that the City, by relying on the “inherent requirement” argument, had undermined its own previous decision to accommodate Mr Damons by keeping him in employment in the fire and rescue service in a position that did not require active firefighting, the implication being that there was a further obligation to accommodate when considering his application for promotion.

The court found that the barrier to Mr Damons’ advancement impaired his dignity. A particular factor that needed to be considered was that Mr Damons’ disability arose because of an accident at work. The court noted that at the time that the final incapacity report was signed by Mr Damons and the City, it indicated that Mr Damons’ injury was permanent and his work could be adapted to “accommodate his incapacity” and recorded that he “could 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 [thereof]”.

The court issued an order to the effect that the application by the City of the advancement policy, which required that Mr Damons must pass certain physical tests, amounted to unfair discrimination in terms of section 6(1) of the EEA. Interestingly, the court did not order that Mr Damons be placed in the position of a senior firefighter, but ordered that the City reconsider his application for appointment to this position.

This approach of viewing disability from an individual perspective and avoiding “blanket bans” on appointments or promotions based on alleged disability echoed an earlier finding of the Labour Court in IMATU & another v City of Cape Town. In this decision, the Labour Court considered whether the City’s imposition of a blanket ban on the employment of diabetics as firefighters amounted to unfair discrimination. The applicant in this matter, Mr Murdoch, was employed as a law enforcement officer by the City. He had also been a volunteer reservist firefighter, actively involved in firefighting when required, and it remained his dream to become a firefighter. A vacancy arose in the City’s fire department at the end of 2002, and Mr Murdoch applied for an internal transfer to this position. He was found to be medically unsuitable for the position of firefighter owing to the fact that he was a diabetic. It was argued that his diabetes rendered him unsuitable for appointment to the position of a firefighter in that he represented an unacceptable safety risk to himself, his colleagues and the public. His application was accordingly refused. Mr Murdoch argued that such a blanket ban on the employment of diabetics as firefighters amounted to unfair discrimination. He claimed that his condition had never prevented him from acting as a voluntary firefighter.

The court evaluated the medical and other evidence placed before it, and decided that the City had failed to prove that a blanket ban on diabetics was justifiable. The ban, and its application to Mr Murdoch, who was a well-controlled diabetic, was unjustified and constituted unfair discrimination in terms of the EEA (the ground on which the City was found to have discriminated was not disability but an analogous ground, but the same principles would apply). The court ordered the City to assess each applicant individually on the employee’s own merits and objective criteria.

Lesson to be learnt for employers

Discrimination and/or dismissal on the grounds of disability has not received as much attention as other grounds of discrimination such as race, sex and age. But the above decisions make it clear that employers must assess individuals on a case-by-case basis and not rely on “blanket bans” unless these can be properly justified. The question whether the employee’s disability can be accommodated is also of crucial importance.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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