DISCRIMINATION: DISABILITY – PSYCHIATRIC ILLNESS OR PSYCHOLOGICAL DISABILITY OR IMPAIRMENT – EMPLOYMENT EQUITY ACT, ACT 55 OF 1998 (AS AMENDED)

“The appellant, however, sought to justify its decision to require the respondent to submit to psychiatric testing on the basis that she had consented to it in her contract of employment; that it had concerns about her behaviour; and that the work performed by her was inherently stressful and demanded that she be “of sound body and mind to adequately perform her duties”. “Consent” is not a justification as contemplated in s7(1) of the EEA. It was therefore correctly rejected by the Labour Court. The appellant’s latter justification that the job was “inherently stressful” and that the respondent was required to be of “sound body and mind to adequately perform her duties” was not borne out by the evidence.

 PHARMACO DISTRIBUTION (PTY) LTD [Appellant] and LIZE ELIZABETH WEIDEMAN [Respondent] (Case no: JA104/2015) [2017] ZALAC (04 July 2017)

Observations about the article: George J. Gliaudys Jr

Dean, Irvine University College of Law, USA.

Excellent exposition of a serious matter.

A few additional comments are in order:

Granted that under most modern statutes and regulations these days, employers have a non delegable responsibility to their employees for maintaining a work environment free from potentially disruptive or harmful events that might cause distress to others who have no choice but to work with their mates around them during the course of the day's employment.

However, employers are not allowed to carte blanche simply dismiss on the basis of observed idiosyncratic behaviour that does not rise to the level of disruption or detriment of others in the workplace. There must be an initial attempt to reasonably accommodate the suspected psychologically impaired employees.

Dismissal is appropriate only when that is impossible to achieve due to various demonstrable objective factors including costs of accommodation or impairment of the core work processes involved. The key is that the employer must document as to what steps were taken before terminating the employee. Internal mechanisms for employee counselling, referrals to medical/psychological resources, and less demanding work assignments need to be utilized. Just the word of the immediate supervisor that the employee was acting "crazy" is insufficient and acting upon such anecdotal basis will as pointed out in the article will lead to a costly result when the employee seeks remedy in the appropriate forum.

BACKGROUND

In the publication Legalbrief Workplace Labour & Employment Watch - Health: Mental health concerns addressed’ Wednesday, 02 August 2017, the observation has been made that people with mental health issues are being denied work because of employers’ concerns. This is according to mental health charity Rethink Mental Illness whose survey of 500 hiring decision makers or influencers found that 83% ‘would worry’ that someone with a severe mental illness would not be able to cope with the demands of their job.

Two-thirds (68%) were concerned that someone with a severe mental illness ‘would not fit in’ with the rest of their team, and three-quarters (74%) ‘suspected’ someone with a severe mental illness would need to take too much time off. HR Magazine reports that the charity said that this adds to the barrier keeping people with mental illnesses out of the workplace.

However, the research found that with improved support, employers ‘might’ decide to hire someone with a mental illness. More than half (56%) said that they would be more likely to employ someone if they felt better equipped to support them.

The reader may agree that the above report does not instil a sense of commitment by employers to employ a person that may be predisposed to mental illness. A compounding factor is that the case law as discussed herein shows that persons in employment who suffers from mental illness are often subjected to the worst kind of humiliating treatment by employers as well as fellow employees to such an extent that it becomes intolerable to remain in employment.

In an article by Martin Barrow ‘Taking mental health seriously is good for workers and business’ Raconteur June 29, 2017, the author alerts that every organization in the UK is affected by mental ill health in the workforce. At any one time, one worker in six will be experiencing depression, anxiety or problems relating to stress. Some 91 million days are lost each year due to mental health problems.

The total cost to UK employers is estimated at nearly £26 billion each year, according to the Centre for Mental Health. That is equivalent to £1,035 for every employee in the UK workforce.

“There is broad acceptance of the scale of the problem and many employers are willing to make a commitment to provide better support at work. Yet despite this high level of engagement, there is a concern that workplace mental health and wellbeing are getting worse, not better.”

In 2016 a survey of almost 20,000 people by Business in the Community (BITC) revealed that 62 percent of employees with mental health problems said work was a contributing factor, while only 11 percent felt able to discuss a recent mental health problem with their line manager.

Therefore, it is submitted that from a business perspective compliance with good practice is an indispensable commercial necessity. Compliance with the law should be regarded as a given, however, the judgments that are discussed below indicate that employers are not alive to the statutory requirements of fair labour practice and seemingly oblivious to the financial prejudice of mental illness in the workplace, albeit precipitated due to stress-related illness or otherwise.  

The Pharmaco judgment by the LAC supra has recently been handed down and is of significant importance insofar as the LAC pronounced on many questions of law pertaining to the applicable statutory prohibition against unfair discriminatory conduct perpetrated against employees with mental illness as well as the substantial relief ordered by the LAC to the employee in the event of a successful referral.

As far back as 2009, at the ‘20th LexisNexis, Current Labour Law Annual Review – 2009’, the renowned labour lawyer and author Professor Halton Cheadle, delivered a paper on the subject matter ‘Employment Discrimination - Mental illness’ and inter alia discussed the judgment Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC).

In Marsland, the employee was employed as the marketing manager. He suffered a nervous breakdown after his wife left him and was hospitalized.

He continued to receive treatment after his return to work. After return to work, the employee has subjected to such humiliating treatment that it became intolerable to remain in employment. He instituted a claim of constructive dismissal for an automatically unfair reason, namely discrimination on the grounds of mental illness.

The Court held that in order to determine the claim three separate enquiries are required namely:

• whether mental illness constituted a discriminatory ground in terms of section 187(1)(f) of the LRA;

• whether there was a ‘constructive dismissal’; and

• whether the principal reason for the dismissal was discrimination on grounds of mental illness.

For the sake of completeness, section 186, ‘constructive dismissal’ and section 187 ‘automatically unfair dismissal’ as stipulated in the LRA has been quoted below:

“186. Meaning of dismissal and unfair labour practice.(1) "Dismissal" means that-

(a)…

(b)…

(c)…

(d)…

(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee [‘constructive dismissal’]; or

[Para. (e) substituted by s. 30 (b) of Act No. 6 of 2014.]

(f)…”

“187. Automatically unfair dismissals.(1) A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is-

(a)…

(b)…

(c)…

(d)…

(e)…

(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;

(g)…

(h)…

(2) Despite subsection (1) ( f )

(a) a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job;

(b) a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.”

As to the first issue, the Court relied on the often cited Constitutional Court decision in Harksen v Lane NO 1998 (1) SA 300 (CC).

There the Court held that the constitutional grounds of discrimination were not a closed list and could include any “discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or affect them in a comparably serious manner.”(at 322).

The Court had no difficulty in holding that discrimination on grounds of mental illness impairs the fundamental dignity of a person as a human being and that, accordingly, mental illness is a prohibited ground of discrimination in section 187(1)(f) of the LRA.

It was necessary to go further and argue that that discrimination was unfair taking into account the factors identified in another judgment by the SA Constitutional Court and often cited by the Courts namely, Hoffman v South African Airways 2000 (11) BCLR 1211 (CC) at paragraph 27.

As to the second issue, the treatment was so humiliating that the Labour Court had little hesitation in finding that the employee had been constructively dismissed.

In order to determine the third issue, namely whether the reason for the dismissal was the principal cause of the dismissal, the Court found, in the absence of any evidence tendered by the employer, that the change in attitude was as a result of his nervous breakdown. This was the principal cause underlying the humiliating treatment that led to his constructive dismissal.

The ER lodged an appeal to the LAC. In New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Court rejected the company's argument that Marsland had been maltreated because he had become "useless in his employment after his illness", which in any event, amounted to much the same.

The only issue was whether Marsland's disturbed mental state could be termed a "disability" because discrimination on the basis of disability is expressly prohibited by section 187(1)(f) of the LRA.

But the Court found it unnecessary to decide that point because discrimination on the basis of mental health was so akin to the impermissible ground that it made little difference whether a nervous breakdown and its aftermath formally fell within the statutory definition of "disability".

What really mattered was that the treatment meted out to Marsland was so appalling that it violated his dignity.

The employer's conduct accordingly fell within the scope of section 187(1)(f). Having made that finding the court could find no reason to interfere with the compensation granted. The employer's only success was to obtain an order halving Marsland's overtime pay.

However, the employer was still required to pay the costs of the appeal.

[See Dr John Grogan, ‘Nervous reaction - Employment Law Journal’ LexisNexis (December 2009) Volume 33 Part 4].

The reader should take notice that SA labour legislation has been amended, especially the LRA, Act 6 of 2014 and the EEA, Act 47 of 2013. 

Against the above background, the Pharmaco judgment by the LAC supra has been handed down and the judgment is of significant importance insofar as the Court inter alia pronounced on:

i) unfair discrimination on account of disability in terms of section 187(1)(f) of the LRA;

ii) employer subjecting an employee to psychiatric assessment and relying on a clause in the employee’s contract as a ground to justify the assessment;

iii) the employee suffered from bipolar and whether it affected her work performance;

iv) that section 7(1) of the EEA prohibits medical testing of an employee unless the legislation permits or requires the testing; or

v) if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job;

vi) that consent is not a justification as contemplated in s7(1) of the EEA;  

vii) that there was, as a result, a direct causal connection between the employee’s bipolar disorder and her dismissal;

viii) damages for injuria – claim for damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against;

ix) held there is in principle no difference between a claim for compensation under s194(3) of the LRA and damages claim under s50(2)(b) of the EEA for non-patrimonial loss.

SUMMARY: PHARMACO DISTRIBUTION (PTY) LTD [Appellant] and LIZE ELIZABETH WEIDEMAN [Respondent] (Case no: JA104/2015) [2017] ZALAC (04 July 2017)

Background

At the outset, it should be mentioned that the background events as set out in the Pharmaco LAC judgment constitute a textbook example of ‘how not’ to treat an employee that suffers from a psychiatric illness – bipolar disorder or any employee on account of a disability, albeit a psychiatric illness or other impairment.

Some of the incidents as recorded in the LAC judgment especially the manner in which the Appellant/Employer (ER) treated the Respondent/Employee (EL) could be described as a display of the people skills of a Marie Antoinette. The events as they unfolded has been recorded in brief, however, with sufficient detail to place the discrimination and humiliation that the EL suffered in context.

In short: on 1 July 2008, the EL was employed in terms of a fixed term contract (FTC) in the capacity of a pharmaceutical sales representative in its pharmacy division.

During December 2008, the ER had assessed the EL in a performance appraisal as “exceptional and consistently demonstrates excellent standards in all job requirements”. 

Subsequently, on 16 July 2009, the parties concluded an indefinite-term contract, in terms of which the EL earned a monthly basic salary of R9 650, 00 a travel allowance of R8 350,00 and a telephone allowance of R500,00. She also earned a commission on sales generated. 

During January to October 2009, the EL raised various queries in relation to the calculation and late payment of her commission.

On 25 September 2009, the EL received a sales printout identifying the sales she had made for the quarter to date and reflecting her commission due. Approximately two weeks later she received another printout.

This print out reflected sales figures substantially lower than the first one.

On 15 October 2009, the EL took the issue up with the ER’S National Sales Manager (NSM), whom she spoke to telephonically. The NSM informed her that her query “would not be entertained at all, even if I put it in writing” and that she should query the issue with ER’S CEO.

 On 16 October 2009, the EL made an appointment with the CEO’S PA, to meet with him, but was not afforded a meeting. Later, on 20 October 2009, she prepared a report setting out how she arrived at her sales’ figures together with supporting documents (“the report”), which she delivered to the CEO’S son.

On 23 October 2009, the EL met with the NSM at the head office, where she handed him the report. The NSM refused to accept the report and threatened to throw it in the bin.

On 28 October 2009, the EL raised a grievance. The grievance was only considered after the EL had sent numerous reminders to management to attend to it. On the same day, the ER ‘charged’ the EL inter alia with the following charges namely, insolence, insulting behaviour, willful refusal to carry out a lawful instruction or to perform her duties, intimidation of fellow employees and damaging the reputation of the ER by insisting that it had produced incorrect figures to deprive her of commission.

Pursuant to a disciplinary enquiry, on 30 October 2009, the EL was found guilty as charged and was issued a final written warning. She appealed against the findings and the sanction, but it was never considered. Instead, on 20 November 2009, the ER summoned the EL to its head office. She was placed on immediate suspension and issued with a letter, dated 18 November 2009, signed by the CEO.

In the letter, the CEO stated, that the EL’S recent behaviour had given rise to “serious concern” and that she had made a statement “to Mr H and the NSM to the effect that you were suffering from bipolar depression”.

The CEO indicated in the letter that the ER was concerned about her health and its “legitimate and lawful interests” as her employer.

He then instructed her, in the letter, to attend a medical examination with a psychiatrist, Dr L, who would be required to advise the ER on “whether or not you are fit to deal with your tasks for the Company and whether you can resume and attend to such tasks without there being any risk for yourself or the lawful and legitimate interests of your employer”.

The CEO concluded the letter by warning the EL that a failure to attend or attendance coupled with “sabotage” of the examination would “constitute a serious offence” and would be dealt with as a disciplinary infraction.  

In response to the instruction to attend the medical examination, the EL’S attorneys addressed a letter, dated 20 November 2009, to the ER recording that its instruction amounted to an act of victimisation which was precipitated by her grievance in relation to the payment of commission. The letter also called upon the ER to withdraw the instruction, failing which the EL would launch an application to the LC.

The ER did not withdraw the instruction. Instead, the CEO addressed a further letter to the EL’S attorney in which he repeated his view that “there have been incidents in our company which force us as a caring and responsible employer to insist that [the EL] attend the doctor’s appointment” and that her failure to attend “would constitute a very serious offence and be dealt with accordingly”. [Emphasis added].

The EL also submitted a letter, from her counselling psychologist, Mr F, to the ER explaining that she suffered from bipolar disorder that was well managed as she was in therapy with him and was medication compliant. Mr F concluded the letter by stating “I can, therefore, see no reason why this condition should in any significant way have affected her ability to function effectively in the work environment.”

The ER did not respond to the letter where after the EL launched an urgent application in the LC in which she sought an order setting aside her suspension and interdicting the ER from instructing her to attend a medical examination. The application was dismissed. The EL failed to attend the medical examination.

The ER charged her with misconduct. On 27 November 2009, the ER considered the EL’S grievance and rejected it. The disciplinary enquiry proceeded on 2 December 2009. The EL was found guilty and was dismissed.

Judgment of the Labour Court

The EL referred a dispute to the CCMA, however, the arbitrator ruled that the CCMA lacked jurisdiction and the EL may refer the dispute to the LC for adjudication.

The LC considered the validity of a clause in the contract of employment in light of the provisions of s7(1) of the EEA. The LC observed that the ER’S case was essential “that the testing was justified given that [the EL] had consented to undergo a medical test when reasonably required by it, and her behaviour coupled with the disclosure of her psychiatric condition”.

The LC observed that s7(1) of the EEA prohibits medical testing “unless” either of the circumstances contemplated in paragraphs (a) or (b) applies. It found that under subsection 1(b) medical testing would not be prohibited if “justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job”.

However, and so it was found consent was not one of the exceptions contained in the subsection. On considering the “medical facts” in s7(1)(b), the LC stated that “the known medical facts” were that the EL suffered from bipolar disorder, was undergoing regular therapy and was taking medication for her condition. It observed that there was also the opinion of her psychologist that her condition should not affect her ability to function effectively in her work environment.

With regard to the “employment conditions” in s7(1)(b) of the EEA, the LC stated:

‘[41] Insofar as the respondent [ER] might find support in the section [i.e. section 7(1)(b)] that ‘employment conditions’ justified the psychiatric examination, the ER made some attempt to try and suggest that the working environment of EL was very pressurized and stressful.

By implication, as I understand the argument, it could not risk employing someone in the position if there was a question mark about their ability to remain mentally stable to cope with the demands of the job. However, the balance of evidence did not support the view that conditions of work in the job were inherently stressful, still less that any expressions of anger or frustration would render the person unable to perform their duties.

[42] It should also be mentioned that what triggered EL’S outburst, had nothing to do with the performance of her duties but arose out of a dispute over an important aspect of her remuneration.

On the evidence presented, it seems clear that the EL lost her temper on 23 October 2009 as a result of her frustrations over what she perceived was an attempt by the ER to avoid addressing her complaints about her commission flowing from what she believed were erroneous sales figures attributed to her ….In any event, insofar as it may be relevant, the EL had a genuine belief that she had been severely prejudiced by an unwarranted revision of the sales figures.’

The LC considered the possible argument based on the inherent requirements of the job and noted that the appellant had “failed to demonstrate such a threshold health qualification was required to perform the duties that the job entailed.”

The Court held that the “ostensible” purpose of the examination was not to establish whether the EL suffered from an unknown disease that was affecting her ability to work; on the contrary, [the EL’S condition was known]. It was common cause that her work performance was not affected. The Court found, in the circumstances, that the ER had failed to establish that its instruction was not prohibited and concluded that:

‘In the absence of being able to establish that clause 17.3 of [the EL’S] contract was justifiable under one of the exceptions to the prohibition in section 7 of the Employment Equity Act, that provision is unlawful and unenforceable.’

The LC, accordingly, found that the ER unfairly discriminated against the EL and that her dismissal was automatically unfair in terms of s187(1)(f) of the LRA. It also found that the ER had discriminated against the EL in terms of s6 of the EEA.

The LC found further that, it was the EL’S bipolar condition which led to her being required to undergo the examination on pain of dismissal. That in itself was unfair discrimination in terms of s 6 of the [EEA].

Consequently, her subsequent dismissal for refusing to accede to being tested for that reason was also a dismissal for a prohibited reason in terms of s 187 (1)(f) of the [LRA]. The knowledge that the EL was bipolar was therefore decisive.

It was noteworthy that the EL’S performance had been rated as "exceptional"; she had no history of absenteeism; the company had not considered it necessary to subject any employees to pre-employment medical or psychological examinations; when the EL had an outburst on 23 October 2009 over her commission dispute, none of the staff had felt threatened by her.

The LC concluded that consequently, it was satisfied that the EL’S dismissal in the circumstances was based on her refusal as a person with a bipolar condition to undergo a medical examination, which she would not have been required to undergo, but for the condition.

The stigmatizing effect of being singled out on the basis of an illness that she was managing, notwithstanding the absence of any objective basis for doubting her ability to perform, is obvious. The act of requiring her to submit to the psychiatric examination in the circumstances was also an act of unfair discrimination in terms of s 6 of the EEA.

The LC held that “clause 17.3 [‘Consent in the contract of employment’] … is not permissible in terms of section 7 of the Employment Equity Act and can be declared null and void”.

The LC ordered the ER, in terms of s194(3)2 of the LRA, to pay the EL the sum of R222 000,00 as compensation for her automatically unfair dismissal and the sum of R150 000,00, in terms of s50(2)(b) of the EEA, as damages for the unfair discrimination committed against her under the EEA, as well as an order as to costs against the ER.

The ER appealed against the whole of the judgment and order of the LC and the EL cross-appealed against its award of compensation and damages. Both the appeal and cross-appeal were granted with leave of the LC.

SUMMARY – LAC JUDGMENT

The LAC analyzed the finding of the LC and held that known fact was that EL suffered from bipolar and that it did not affect her work performance.

Section 7(1) of the EEA prohibits medical testing of an employee unless the legislation permits or requires the testing or it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

Of importance is that the LAC found that ‘consent’ was not a justification as contemplated in s7(1) of the EEA. The common cause facts revealed that none of the other salespersons was subjected to any pre-employment medical assessments or questionnaires relating to their ability to cope with stress on the job.

Clause 17.3 supra of the contract of employment was patently offensive and invasive of the privacy rights of the employee and was plainly inconsistent with s7(1) (b) of the EEA. Evidence revealed that ER had discriminated against the EL because of her bipolar disorder.

The ER’S primary concern was the EL’S bipolar disorder and the ‘perceived dangers’ associated with it, notwithstanding the EL’S exceptional performance reviews, and no matter the legitimacy of her grievance, the mere fact that she suffered from bipolar disorder was a matter of such grave concern to the ER, that she had to be subjected to a psychiatric assessment.

The LAC held that there was, as a result, a direct causal connection between the employee’s bipolar disorder and her dismissal.

As to the cross-appeal and compensation, the LC failed to take into account that the ER manipulated the employee’s medical condition in order to secure her dismissal. As a consequence, the EL suffered humiliation as a result of the ER’S conduct.

The LAC held further that when considering the appropriate order to make under s194(3) of the LRA, the Court must take into account that such dismissals are frowned upon and should deter employers from automatically unfairly dismissing employees.

The LC’S order as to compensation was set aside for the reasons as summarised below.

Damages for injuria - the EL claimed damages for non-patrimonial damages for impairment of her dignity as a result of being unfairly discriminated against. The Court held there was in principle no difference between her claim for compensation under s194(3) of the LRA and her damages claim under s50(2)(b) of the EEA for non-patrimonial loss.

To award both non-patrimonial damages and compensation to the employee for the same wrongful conduct of the ER would not be just and equitable as it would amount to penalizing the ER twice.

The appeal was dismissed with costs and the cross-appeal partially upheld. The LC’S judgment was set aside as far as compensation was concerned.

Order

In the result, the LAC ordered:

1 The appeal is dismissed with costs.

2 The cross-appeal is partially upheld, with no order as to costs.

3 The award ordering the appellant to pay the respondent R150 00,00 as general damages for the unfair discrimination committed in terms of s6 of the Employment Equity Act is set aside.

4 The award ordering the appellant to pay the respondent R220 000,00 in compensation for her unfair dismissal in terms of s187(1)(f) of the Labour Relations Act is set aside and replaced with the following order:

‘The appellant is ordered to pay the respondent R285 000,00 as compensation for her automatically unfair dismissal in terms of s187(1)(f) of the Labour Relations Act.’

CONCLUSION:

The judgment by the LAC constitutes a clear and unequivocal message to employers of the Court’s disapproval of unfair discrimination based on a listed ground, namely disability – psychiatric illness as stipulated in terms of section 6(1) of the EEA; as well as on account of section 187(1)(f) of the LRA ‘automatically unfair dismissal.’

The amount of compensation and damages is substantial and legal costs incurred would be significant.

Johann Scheepers

September 2, 2017.

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