The applicant employee approached the Labour Court due to his contention that he was automatically unfairly dismissed and that he was unfairly discriminated against on the ground of his disability, i.e., being legally blind. The Labour Court found that reading and writing was an inherent requirement of the job of a senior researcher, and the fact that the respondent could not accommodate him did not amount to unfair discrimination. Furthermore, the respondent had a legitimate reason for dismissing the applicant which was his incapacity and not the fact that he was disabled.

Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175; (2023) 44 ILJ 2237 (LC); [2023] 9 BLLR 915 (LC) (6 June 2023)

Case summary

The applicant approached the Labour Court (“the Court”) for relief in terms of a two-fold claim, i.e., an automatically unfair dismissal claim in terms of the Labour Relations Act and an unfair discrimination claim in terms of the Employment Equity Act.

The applicant was employed as a senior researcher with the respondent from 1 September 2011. The applicant experienced difficulties with his eyesight and he had to undergo numerous surgical procedures. He was later declared legally blind on 17 January 2018. As a result, his medical specialist requested that he be assisted with a disability grant as his condition was permanent. On 22 January 2018, the applicant requested the respondent to assist him with “permanent disability forms”.

The applicant’s automatically unfair dismissal claim was that the reason for his dismissal was because the respondent unfairly discriminated against him on the ground of a disability, and his unfair discrimination claim was that he was discriminated against on the ground of his disability.

The respondent pleaded that the applicant’s dismissal was fair because the ability to read and to write was an inherent requirement of the position of senior researcher as well as that of ICT manager, another position which the applicant contended he would be able to fill. After being declared legally blind, the applicant could not perform the key responsibilities required by the said positions. The applicant was not fit to perform the core responsibilities of the position of senior researcher or ICT manager and he rejected another junior, but alternative, position. The respondent disputed discrimination against the applicant.

The applicant held that he was coerced into completing the ill-health retirement forms as he never wanted to go on ill-health retirement. The Court was not convinced that the applicant had been forced or coerced to apply for ill-health retirement.

It is common cause that the respondent called for a meeting with the applicant on 21 August 2018. The reason for the meeting was to explain the respondent’s recommendations to the applicant. At the conclusion of the meeting, three options were given to the applicant, to wit the ICT manager position which the applicant proposed, a lower position at the contact centre or medical boarding. It was agreed that the applicant should inform the panel in writing of the option that would suit him best and provide a proper motivation in support of his choice. The applicant failed to submit a written motivation for the ICT manager position by the agreed date and instead sent an e-mail stating that he was left with no other option but to accept the respondent’s decision to terminate his services. The respondent extended a further opportunity to the applicant to submit a proper motivation, but he failed to make use of the opportunity.

The Court held that the applicant cannot perform a job which requires him to read and write, and by not accommodating him in positions where the ability to read and write is an inherent and core requirement, the respondent had not discriminated against the applicant on the ground of his disability. Therefore, the Court held that the respondent did not discriminate against the applicant based on his disability.

The Court also had to decide whether the applicant was dismissed on the ground of discrimination relating to his disability.

The Court held that the Labour Relations Act provides guidelines for an incapacity dismissal and that it consists of a four-stage enquiry. Stage one requires the employer to enquire into whether or not the employee with a disability is able to perform his work. Stage two requires the employer to enquire into the extent to which the employee is able to perform his work. Stage three requires the employer to enquire into the extent to which it can adapt the employee’s work circumstances to accommodate the disability. During the third stage, the employer must consider alternatives short of dismissal. Stage four entails that if no adaptation is possible, the employer must enquire if any other suitable work is available.

The Court held that the respondent had indeed established that the applicant was unable to perform his work, being that of a senior researcher, with the ability to read and write as a core inherent requirement. The respondent had also established that there was no extent to which the applicant would have been able to perform his duties as a researcher or to which his work circumstances could have been adapted. Furthermore, no amount of adaption would change the fact that reading and writing were core requirements, and that the applicant was not able to perform any job which required him to read and write.

The applicant had to prove that he was indeed discriminated against for reasons relating to his disability, and he had to show that his dismissal was causally connected to his disability. The Court held that the mere fact that the applicant’s disability was a factual cause was not sufficient to find that there was an adequate causal link between the applicant’s disability and his dismissal to conclude that his disability was the reason for it.

The applicant was no longer able to do any job which required reading and writing, and the respondent cannot be expected to continue an employment relationship with an employee who is unable to perform his duties and who was absent from work for a prolonged period.

The applicant failed to produce adequate evidence to prove that the treatment he received differed in any way from the treatment other employees received, or that the reason for his dismissal was his disability.

The Court concluded that the respondent had a legitimate reason for dismissing the applicant and the proximate reason for his dismissal was his incapacity and not the fact that he was disabled. The applicant’s claim was, therefore, dismissed.

Written by the Labour Guide