Specialist medical examination: Invalid test provision

EWN v Pharmaco Distribution (Pty) Ltd (JS654/10) [2015] ZALCJHB 329 ; (2016) 37 ILJ 449 (LC) (22 September 2015) per Lagrange J.

The Labour Court held that the employer’s conduct was discriminatory and her dismissal automatically unfair. After finding that a particular provision in the employment contract was invalid and general damages and substantial compensation were awarded. A pharmaceutical sales representative was dismissed on 3 December 2009 for insubordination in that she refused or failed to be examined by a psychiatrist for a medical examination.

The applicant suffers from a bipolar disorder and claims that the instruction was unlawful and discriminatory based on disability amounting to an act of harassment. It terms of the employment contract employees were required to undergo specialist medical examinations, including psychological evaluations, by a medical practitioner nominated and appointed by the employer. Employees purported to consent to medical practitioners disclosing the results of the examination to the employer and to discuss them with the medical practitioner.

Excerpt from judgment

“[49] Consequently, I am satisfied that her dismissal in the circumstances was based on her refusal as [a] person with a bi-polar condition to undergo a medical examination, which she would not have been required to undergo, but for her condition. The stigmatising 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 examination in the circumstances was also an act of unfair discrimination in terms of s 6 of the Employment Equity Act”.

2 Comments

GilesFiles on February 8, 2016 at 11:08 am

Reported:
(2016) 37 ILJ 449 (LC)

GilesFiles on December 23, 2016 at 10:19 am

See also:
Employment contracts and medical examinations: When does a refusal to submit justify dismissal?
P.A.K. le Roux
Contemporary Labour Law 26:5 December 2016 p 50

Comment by P.A.K le Roux

This decision constitutes a timely warning that employers cannot rely on clauses in contracts of employment in terms of which employees consent to being medically tested. Testing is only permitted if this falls within the scope of section 7 of the EEA.
One criticism that can be levelled against the decision is that it does not indicate on what ground the discrimination was found to have occurred. The most obvious answer would be on the grounds of disability. The problem with this is that it was common cause that the employee was capable of doing her job, despite her condition. The Court’s argument does not seem to fit into one of the other listed grounds of discrimination, whether in terms of section 6 of the EEA or in terms of section 187(1)(f) of the LRA.
The only possibility is that there was discrimination on an arbitrary ground. If so, given the debate in this regard, some discussion on the test for what constitutes an arbitrary ground would have been useful. The issue of the onus of proof as regulated in section 11 of the EEA should also have been considered.

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Specialist medical examination: Invalid test provision

Excerpt from judgment

2 Comments

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