Facial cosmetic impairment discrimination: Damages and compensation

S v Kit Kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362 ; [2016] 12 BLLR 1239 ; (2017) ILJ 483 (23 September 2016) per S Snyman AJ and refused leave to appeal on 2 December 2016.

The LC held that the employer had discriminated against a senior employee by effectively dismissing him after his face was disfigured but not prevented from performing his usual functions. No attempt was made to accommodate the employee and he was treated unfairly and regarded as ‘disabled’. Damages and compensation were awarded apart from costs.

See discussion of topic in Du Toit et al Labour Relations Law: A Comprehensive Guide 6th ed (LexisNexis 2015) at pages 437, 464, 469, 679, 754 and 755.

LC summary:

Discrimination:

disability – meaning of – employee having disability
what constitutes – conduct of the employer towards the employee – discrimination based on disability
what constitutes unfair discrimination – principles of accommodation and hardship considered – conduct of employer considered – discrimination unfair
relief afforded to applicant – principles considered – meaning of damages and compensation – damages and compensation awarded

Excerpts without footnotes

[38] In my view, the injuries suffered by the applicant and the consequent effect thereof left the applicant with a disability as contemplated by the EEA, which defines ‘people with disabilities’ as meaning ‘… people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment’. In the Code of Good Practice on employment of people with disabilities published in terms of the EEA (‘the Code’), it is reflected that the scope of protection for persons with disabilities in employment focuses on the effect of a disability on the person in relation to the working environment, and not on the diagnosis or the impairment per se.

. . . . .

[40] The applicant is not relying on any mental impairment, and the evidence in fact was that he was mentally fit and able in all respects. In this instance, the applicant has suffered what can be considered be a loss of part of his body, considering the disfigurement of his facial features. Further, he has a clear speech impairment, with speech being a bodily function. There can be no doubt that this condition is permanent. Finally, as to the issue of ‘substantially limiting’, the very basis of the respondent’s case and why the applicant was not allowed to resume his normal duties was because the respondent considered this impairment to be substantially limiting the applicant’s ability to do his job. It is clear that what lies at the foundation of this case is the disability which the applicant now has following his attempted suicide.

. . . . .

[42] The simple point is that where it comes to protection against discrimination in the case of a disability, it is of little relevance what the employee may think about his or her ability to fulfil the obligations and duties of the position. It is about what the employer perceives the disability to cause. Once the employer thinks that because an employee had a disability and this disability impacts on the employee’s ability to do the job, the discrimination protection against people with disabilities must apply. As stated, there is no doubt that the respondent thinks that the applicant’s disability would impact on his job. This means that this matter must be decided on the basis of this disability and the protections associated with it.

. . . . .

[48] The manner in which the respondent dealt with this matter in nothing else but unacceptable. The moment when the applicant tendered service, the respondent should have accepted him back into service. If the respondent believed that the applicant was substantially impaired from doing his job because he was ‘cosmetically unacceptable’ and had a speech impediment, it needed to deal with this either by way of incapacity proceedings or conducting the kind of enquiry envisaged by the EEA as will be elaborated on hereunder. But first the applicant should have been allowed to report for work, and then return to work.

. . . . .

[53] In summary, and based on what I have set out above, I have little hesitation in concluding that the conduct of the respondent, considered as a whole, was of the nature that seeks to bring about the termination of the employment relationship, and is certainly a repudiation of the employment contract of the applicant. This conduct includes representing to the applicant that he was welcome to return to work when this was in reality not the case, refusing his tender of work when it was first made, seeking to persuade him to pursue a disability claim, telling him that he is ‘cosmetically unacceptable’ and his presence traumatizes the other employees, informing him that he unable to do his ‘full work’ without conducting any process to determine this, and suggesting that he leave whilst ignoring the medical reports that the applicant was fit to work, and finally seeking to negotiate his exit. The applicant was entitled to consider the employment relationship as terminated, which he ultimately did by the time this matter came to trial.

. . . . .

[58] The respondent contended that because of his speech impediment, which made it difficult to understand the applicant, the applicant was not able to ‘fully’ do his job. Assuming for the purposes of argument that the respondent’s concerns in this regard, at least on a prima facie basis, may have been justified, the fact is that the respondent presented no evidence and conducted no process to justify or even remotely substantiate this point of view. What the respondent needed to do was to have conducted a proper incapacity investigation into what consequences this speech impediment would have on the applicant’s ability to discharge his duties.

The respondent needed to properly and objectively assess to what extent the applicant’s ability to interact with fellow employees or suppliers was impacted upon (the applicant had little dealings with customers). Further, and if there was an impact, it needed to be explored how the applicant could possibly be accommodated. But what the respondent did was to simply assume that disability automatically equates to incapacity, which is not so. As the Court said in Standard Bank:

‘Disability is not synonymous with incapacity. … An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.’

. . . . .

[82] Based on a consideration of all these factors as set out above, I believe that an appropriate damages award in terms Section 50(2) of the EEA is an amount equivalent to 24(twenty four) months’ salary, which is comparable to the maximum compensation award for an automatic unfair dismissal in terms of Section 194(3) of the LRA. As to an appropriate award of compensation as a solatium, I consider that an additional award of 6(six) months’ salary would be appropriate. Overall, in exercising by discretion, I believe this to be fair to both parties, considering what happened as a whole.

GilesFiles on October 13, 2016 at 10:18 am

Darcy du Toit’s latest Editorial in IR Network published by LexisNexis [subscription required]

All roads don’t lead to Rome

In theory, the difference between dismissal based on incapacity and discrimination based on disability is very clear. In practice it can be far more complex, even if the facts are not in dispute. One such case was Smith v The Kit Kat Group (Pty) Ltd (Case no JS 787/14, 23 September 2016) where the Labour Court was faced with a formidable array of overlapping issues in deciding a claim of unfair discrimination.

. . . . .
The answer lies in the definition of “disability” in the Code of Good Practice on employment of people with disabilities, describing it as a long-term impairment “which substantially limits [employees’] prospects of entry into, or advancement in employment” (para 38). The question, in other words, is not the employee’s medical condition but the effect on his/her employment prospects. This shifts the inquiry to the employer’s reaction to the employee’s condition; and, in Mr Smith’s case, there is no doubt that his prospects were (to say the least) limited.

The second step is whether the employer’s reaction to Mr Smith’s disability amounted to “discrimination”. The answer might seem obvious, especially in light of ILO Convention 111 which courts are expressly required to follow when applying the EEA.1 The Convention defines “discrimination” as “any distinction, exclusion or preference” based on a prohibited ground (such as disability in the case of South Africa) “which has the effect of nullifying or impairing equality of opportunity in treatment in employment or occupation”. And this, it would seem, describes Mr Smith’s treatment to a ‘T’ – end of story.

Unfortunately, South African courts seldom take note of section 1(d) of the EEA or Convention 111, and the present case was no exception. And so the alternative is to embark on a fresh inquiry in each case, drawing on an extensive and diffuse range of previous decisions (some of them contradictory), to once again pin down the meaning of prohibited discrimination.
. . . . .

What precisely was argued on this issue is unclear, and the point was not addressed in the judgment. But, though “dismissal” was seen as the primary form of discrimination, the problem was avoided by noting that it also involved non-payment of “remuneration”, which is included on the list of employment policies and practices. Furthermore, the list is open-ended and, against this somewhat convoluted background, the employer’s conduct “considered as a whole” was held to be “discrimination” in the context of an “employment practice” (paras 53, 54). With this finding, certainly, there can be little disagreement.

The next question was whether such discrimination based on disability was “unfair”. In terms of ILO Convention 111 the answer can only be ‘yes’; discrimination on a listed ground must surely be (in South African terms) ‘automatically unfair’, or the purpose of listing them is lost. (Or, to put it differently, can out-and-out discrimination on a listed ground ever be “fair”?) However, the ambiguous use of this adjective has led our courts time and again to conduct an inquiry which should not be necessary.
. . . . .

The point here is that compensation must be in a discretionary amount that is “fair and equitable”, which the court must calculate by taking into account a range of relevant factors (paras 75-78). Remuneration lost as a result of unfair discrimination is certainly a highly important factor. However, Mr Smith had lost much more than 24 months’ remuneration since February 2014; 2 no indication is given why his damages were reduced to the amount laid down by the LRA in a different context.

There is also no indication why six months’ remuneration is “just and equitable” compensation for his loss of dignity. It might be asked “why not?” – but that is the wrong question, since the Act lays down a specific benchmark. Interestingly, the judgment refers to the amounts as being “appropriate” rather than “just and equitable” (para 82).

Subject to this reservation, it is difficult to disagree with the outcome of the case. The real questions relate to the route by which the court arrived there. The danger is that the judgment may add to the “extensive and diffuse” body of jurisprudence on the meaning of unfair dismissal, where lack of consistency is reflected in a diversity of approaches and findings by different judges. This gives opportunistic litigants a growing variety of apparently authoritative rulings to choose from, of which even the most questionable might find their way into subsequent case law.

2 Comments

GilesFiles on October 13, 2016 at 10:18 am

Darcy du Toit’s latest Editorial in IR Network published by LexisNexis [subscription required]

All roads don’t lead to Rome

In theory, the difference between dismissal based on incapacity and discrimination based on disability is very clear. In practice it can be far more complex, even if the facts are not in dispute. One such case was Smith v The Kit Kat Group (Pty) Ltd (Case no JS 787/14, 23 September 2016) where the Labour Court was faced with a formidable array of overlapping issues in deciding a claim of unfair discrimination.

. . . . .
The answer lies in the definition of “disability” in the Code of Good Practice on employment of people with disabilities, describing it as a long-term impairment “which substantially limits [employees’] prospects of entry into, or advancement in employment” (para 38). The question, in other words, is not the employee’s medical condition but the effect on his/her employment prospects. This shifts the inquiry to the employer’s reaction to the employee’s condition; and, in Mr Smith’s case, there is no doubt that his prospects were (to say the least) limited.

The second step is whether the employer’s reaction to Mr Smith’s disability amounted to “discrimination”. The answer might seem obvious, especially in light of ILO Convention 111 which courts are expressly required to follow when applying the EEA.1 The Convention defines “discrimination” as “any distinction, exclusion or preference” based on a prohibited ground (such as disability in the case of South Africa) “which has the effect of nullifying or impairing equality of opportunity in treatment in employment or occupation”. And this, it would seem, describes Mr Smith’s treatment to a ‘T’ – end of story.

Unfortunately, South African courts seldom take note of section 1(d) of the EEA or Convention 111, and the present case was no exception. And so the alternative is to embark on a fresh inquiry in each case, drawing on an extensive and diffuse range of previous decisions (some of them contradictory), to once again pin down the meaning of prohibited discrimination.
. . . . .

What precisely was argued on this issue is unclear, and the point was not addressed in the judgment. But, though “dismissal” was seen as the primary form of discrimination, the problem was avoided by noting that it also involved non-payment of “remuneration”, which is included on the list of employment policies and practices. Furthermore, the list is open-ended and, against this somewhat convoluted background, the employer’s conduct “considered as a whole” was held to be “discrimination” in the context of an “employment practice” (paras 53, 54). With this finding, certainly, there can be little disagreement.

The next question was whether such discrimination based on disability was “unfair”. In terms of ILO Convention 111 the answer can only be ‘yes’; discrimination on a listed ground must surely be (in South African terms) ‘automatically unfair’, or the purpose of listing them is lost. (Or, to put it differently, can out-and-out discrimination on a listed ground ever be “fair”?) However, the ambiguous use of this adjective has led our courts time and again to conduct an inquiry which should not be necessary.
. . . . .

The point here is that compensation must be in a discretionary amount that is “fair and equitable”, which the court must calculate by taking into account a range of relevant factors (paras 75-78). Remuneration lost as a result of unfair discrimination is certainly a highly important factor. However, Mr Smith had lost much more than 24 months’ remuneration since February 2014; 2 no indication is given why his damages were reduced to the amount laid down by the LRA in a different context.

There is also no indication why six months’ remuneration is “just and equitable” compensation for his loss of dignity. It might be asked “why not?” – but that is the wrong question, since the Act lays down a specific benchmark. Interestingly, the judgment refers to the amounts as being “appropriate” rather than “just and equitable” (para 82).

Subject to this reservation, it is difficult to disagree with the outcome of the case. The real questions relate to the route by which the court arrived there. The danger is that the judgment may add to the “extensive and diffuse” body of jurisprudence on the meaning of unfair dismissal, where lack of consistency is reflected in a diversity of approaches and findings by different judges. This gives opportunistic litigants a growing variety of apparently authoritative rulings to choose from, of which even the most questionable might find their way into subsequent case law.
GilesFiles on November 9, 2016 at 6:00 pm

Reported
[2016] 12 BLLR 1239; (2017) ILJ 483 (LC)
BLLR headnote
Discrimination – Disability – Employee not allowed to resume work after face disfigured and speech impaired by suicide attempt – Employer’s conduct constituting unfair discrimination because no attempt made to consult or accommodate employee.

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Facial cosmetic impairment discrimination: Damages and compensation

LC summary:

Excerpts without footnotes

2 Comments

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