In September last year, the Labour Court gave judgment in the case of EWN v Pharmaco Distribution (Pty) Ltd. This case dealt with:

• Automatically unfair dismissal in terms of section 187(1)(f) of the Labour Relations Act, 66 of 1995 (“LRA”);
• Unfair discrimination in terms of section 6 of the Employment Equity Act, 55 of 1998 (“EEA”);
• The requirement by an employer that an employee undergo psychiatric testing; the predominant reason for this being the employee’s pre-disclosed bi-polar condition; and
• Section 7 of the EEA in relation to the validity of a “Medical Examinations and Health” stipulation in an employment contract.

Section 187(1)(f) of the LRA states:

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—

 ( 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;

Sections 6 and 7 of the EEA state (highlighting only the sections relevant to this case):

6.   Prohibition of unfair discrimination.—(1)  No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.

7.   Medical testing.—(1)  Medical testing of an employee is prohibited, unless—

(a) legislation permits or requires the testing; or

(b) it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

This case and judgment are significant, as there has been much case law internationally of late dealing with employmentlaw in relation to employee illness, employee medical conditions, and medical testing.

A summary of the facts of the case:

Pharmaco employed EWN as a pharmaceutical sales rep, first on fixed term contract and then on a permanent contract.  Clause 17 of EWN’s employment contract pertained to medical examinations and health and stated inter alia that Pharmaco could require their employee to undergo a specialist medical examination if they deemed it necessary.  Shortly after taking up employment, EWN shared with various members of the company that she suffered from bi-polar disorder.  EWN was both medication-compliant in relation to the disorder and in the care of a psychologist that she saw approximately once a month.  In the last performance assessment she had with Pharmaco, EWN’s performance was rated as “exceptional”.  EWN was dismissed on 3 December 2009 after failing to present herself for an employer-instructed medical examination with a psychiatrist on 24 November 2009.

This medical examination request by Pharmaco came at the end of a protracted battle between EWN and her employer.  During January to October 2008, EWN had continuously queried the calculation of her commission, yet was never offered what would have been for her, a satisfactory explanation.  On 25 October 2009, she stated her frustration with what she claimed were errors in her commission calculations in an email addressed to the chairperson and CEO of Pharmaco.  On 28 October 2009, she raised a formal grievance about her commission payments.  On the same day she was given a notice to attend a disciplinary enquiry scheduled for 30 October 2009.  In the disciplinary, she was found guilty of using abusive and / or insulting language towards fellow employees and the employer, of going to head office without permission and of damaging the company’s reputation by insisting that her sales figures were incorrect.  In terms of using abusive and / or insulting language towards fellow employees and the employer, this related to two separate occasions when EWN (usually viewed by her fellow employees as polite) raised her voice and lost her temper over her issue with her commission which she felt was being dismissed with no explanation.

On 5 November 2009, EWN was issued with a final written warning based on the enquiry findings.  On 20 November, the Pharmaco CEO issued EWN with a letter suspending her on full pay with immediate effect instructing her to present herself for the medical examination in 4 days time (it was common cause that no sales representative had been subjected to any pre-employment medical or psychological assessment).  EWN was told that the purpose of the examination was to determine whether or not she was fit to deal with her tasks.  On 20 November 2009, EWN responded through her attorneys of record, suggesting that Pharmaco was victimising her and called upon the company to uplift her suspension and withdraw the instruction. Pharmaco rejected the demand.  On 23 November 2009, EWN referred an unfair labour practice dispute.  On 26 November 2009, EWN was issued with a notice of a second disciplinary enquiry to be held on 2 December 2009.  The following day, a hearing was held to consider her grievance over commission payments.  Her grievance was dismissed as unfounded on 30 November 2009.

The second disciplinary hearing took place on 2 December and the following day, EWN received a letter confirming she had been dismissed for failing to submit herself to a medical examination.  Following her dismissal, she referred a dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), but at arbitration proceedings the arbitrator ruled that the CCMA did not have jurisdiction to hear a dispute of this nature (automatic unfair dismissal and discrimination based on a medical condition), which led to the referral to the Labour Court.  On 5 December 2009, EWN also provided Pharmaco with a letter from her counselling psychologist, which stated that she was medication-compliant in terms of her bi-polar disorder, had been in the consistent care of the psychologist for some time, and that the psychologist could see no reason why her condition should affect her ability to function effectively at work.  On the same day, EWN sought an undertaking from the company suspending the medical examination pending the outcome of an urgent application in the Labour Court.  An application was launched to uplift her suspension and declare Pharmaco’s instruction unlawful.  The application was unsuccessful.

Findings of the Court dealing with the alleged automatically unfair dismissal:

The Labour Court had to determine:

• Whether the provisions of EWN’s contract of employment requiring her to undergo medical testing were enforceable or void;
• Whether her dismissal for failing to submit to a medical examination on the employer’s instruction was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act; and
• In the event that her dismissal was not automatically unfair, whether it was substantively or procedurally unfair.

Before deciding if EWN’s dismissal for failing to submit to a medical examination was automatically unfair or not, the Court looked at whether the instruction was legally permissible.  The court found that Clause 17 of EWN’s employment contract was unlawful and unenforceable, as it was not justified under any of the exceptions to prohibition in section 7 of the EEA.  The Court stated that Pharmaco could only require EWN to undergo testing if the requirements of section 7(1)(b) of the EEA were met.  The Court also felt it important to mention that what had triggered EWN’s outburst had nothing to do with the performance of her duties, but rather arose out of a dispute over her remuneration.  The Court pointed out that an alternative justification under section 7(1)(b) might, in theory, be founded on an argument that it is an inherent requirement of the job of a pharmaceutical sales rep to be medically fit for work.  The court highlighted, however, that the respondent “failed to demonstrate such a threshold health qualification was required to perform the duties the job entailed.”  The Court went on to state that the “ostensible object of the (medical) examination was not to determine if the applicant was suffering from some unidentified ailment that was affecting her ability to work”, but rather that it was about whether her disclosed psychiatric condition made her unfit to perform her duties.

In answering the question of whether or not Pharmaco unfairly discriminated EWN and whether or not her dismissal was automatically unfair, the Court looked at section 187(1)(f) of the LRA and found that it was EWN’s “bi-polar condition that led to her being required to undergo the (medical) examination on pain of dismissal” which, in itself, amounts to unfair discrimination in terms of section 6 of the EEA.  The judge stated:

“…I am satisfied that her dismissal in the circumstances was based on her refusal as 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.”

In terms of relief, EWN had sought relief in the form of payment of compensation being equivalent to 24 months’ remuneration or, alternatively, 12 months’ compensation in the event of her dismissal being found substantively and procedurally unfair.  She also claimed payment of R100 000.00 for non-patrimonial damages for contumelia (indignity / affront / abuse / insult), humiliation, impairment of dignity and injuria (invasion of another's rights).

In lieu of no specific motivation being advance on the part of EWN for the R100 000.00 claim, the court found a sum of R15 000.00 to be adequate compensation.  In assessing an appropriate amount of compensation for the automatically unfair dismissal, the court stated that it gave weight to EWN’s length of service, the fact that Pharmaco genuinely believed that clause 17 in the employment contract protected it against legal challenges, the fact that Pharmaco had a chance to consider the lawfulness of its actions when confronted by EWN’s original attorneys of record and the fact that Pharmaco’s demand for a medical examination lacked a credible basis for wanting to assess EWN fitness to perform her duties.  Accordingly, the court awarded EWN compensation in the amount of 12 month’s remuneration based on her basic gross salary (no detailed evidence of the history of EWN’s gross earnings was led in terms of which the Court could reliably estimate an average commission component of her salary).  The Court also ordered Pharmaco to pay EWN’s costs.