By Gillian Lumb and Anli Bezuidenhout, Cliffe Dekker Hofmeyr
As soon as an employer considers an employee to be disabled, the employer must take steps to accommodate that employee unless this results in an unjustifiable hardship. In Smith v Kit Kat Group (Pty) Ltd (JS787/14)  ZALCJHB 362 (23 September 2016), the employee sustained injuries during a failed suicide attempt. After being termed “cosmetically unacceptable” by his employer, the employee was prohibited from returning to work.
The employee tried to commit suicide during September 2013. Fortunately, he survived but tragically sustained severe facial injuries, which caused a minor speech impediment. The employer considered the employee to be “not facially acceptable” and “cosmetically unacceptable”.
From the date that he was released from hospital, the employee did everything in his power to try and resume his duties. Initially, it appeared as though he would be permitted to do so. However, as time progressed it became apparent that the employer had no intention of allowing him to return to work. Although the employer prohibited the employee from returning to work and resuming his duties, he was not dismissed. The employee was effectively left in limbo.
This resulted in the employee referring an unfair discrimination dispute to the Labour Court in terms of s10 of the Employment Equity Act, No 55 of 1998 (EEA) which prohibits discrimination based on, among other factors, disability. In his referral, the employee also relied on the Code of Good Practice on the Employment of People with Disabilities (Code).
In terms of the Code, employers are obliged to reasonably accommodate the needs of people with disabilities. The only exception to this requirement, is when the reasonable accommodation may impose “unjustifiable hardship” on the business of the employer. During the accommodation process, an employer must, at the very least, consult the employee and establish what mechanisms may be implemented to accommodate the disability. The employer in the Smith case failed to do this.
According to the Labour Court, once an employer (not the employee) thinks that a disability may impact an employee’s job, the employer must ensure that it does not discriminate against the employee based on disability. In this instance, the court found that the employer adopted the wrong approach. Although the employer did not actively terminate the employee’s employment, its refusal to allow the employee to resume his duties was, according to the court, tantamount to a dismissal.
Interestingly, in considering whether or not the existence of an unjustifiable hardship may have warranted the employer’s passive approach, the Labour Court held that in assessing the existence of an unjustifiable hardship, the unjustifiable hardships of both parties should be considered, not only that of the employer. The Labour Court awarded compensation and damages amounting to 30 months’ remuneration.
It is clear from this judgment that the Labour Court considers a blatant failure to address the needs of a disabled employee in a very serious light. An employer’s obligations in terms of the EEA and the Code to accommodate employees who have disabilities, are disregarded at an employer’s own peril.