This article was written by Purnel Gangiah,  a Candidate Attorney at Norton Rose Fulbright South Africa

The mere fact that an employer considers an employee to be disabled does not necessarily mean that the employee is in fact disabled and cannot fulfill its normal duties at work.

In Smith v Kit Kat Group (Pty) Ltd. (2017) 38 ILJ 483 (LC), the employee attempted suicide which resulted in him being severely injured and disfigured. On his return to work, his employer informed him that he was not “facially acceptable” and that his presence at work would remind the other employees of the unfortunate event.

The employer required him to lodge a disability claim, which he refused to do. The employer did not formally dismiss him, but merely persisted with the stance that he could not resume work. The employer expressed the view that he was incapable of fulfilling his duties in full.

The employee referred an unfair labour practice dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and launched a claim for damages against his employer in the Labour Court based on unfair discrimination in terms of the Employment Equity Act, 1998 (the EEA). The EEA defines disabled people 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”.  The EEA prohibits the discrimination against an employee on a number of grounds, including disability.

The Labour Court found that the employee’s disfigurement and his speech impairment was a disability as defined in the EEA. However, the employee should have been allowed to resume his normal duties.  If he was indeed unable to perform his normal duties, the employer should have followed an incapacity process.  There would have been no hardship suffered by the employer if the employee had returned to work and proven that he was fit to fulfill his duties.

The court found that the employee had been unfairly discriminated against and awarded him 24 months remuneration and further compensation equal to 6 months remuneration for the damages suffered as a result of the unfair discrimination.

Employers must avoid labelling an employee as disabled and unfit to perform normal duties, simply because the employee’s condition or appearance falls within the definition of disability. Whist it is conceivable that there will be certain situations that an employee’s facial appearance and speech impairment may result in him not being able to fulfill his duties, an employer cannot assume as much.  Where an employee’s disability is impacting on its normal duties, employers must follow the required incapacity process.

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