Promotions Reserved for the Articulate – Unfair Discrimination?

We recently wrote about the case of Damons v City of Cape Town (2022) 43 ILJ 1549 (CC) where the Constitutional Court found that the failure to promote a disabled firefighter did not constitute unfair discrimination.

Written By of Cowan-Harper-Madikizela Attorneys

The Labour Court has just handed down judgment in GIWUSA and Another v African Explosives Limited (Unreported) (Case No: J2311/14), dealing with a similar issue. In this case, Mr Mandla Tshaya (“the Employee”) was not promoted because of a speech impediment that he suffered from.  The Employee alleged that the Employer’s decision not to shortlist him for promotion constituted unfair discrimination.

The Employee was employed by African Explosive Limited as an Operator since 2006. He applied to be appointed as a Technologist in 2013, but was not shortlisted for this position solely because of the speech impediment that he suffered from.

The Employee lodged a grievance which led to extensive consultations between the Employee and the Employer taking place. At the conclusion of these consultations, the Employee was promoted to the position of Lead Operator. As he was required to operate in an area that required him to  wear a mask or respirator, the Employer accommodated him by specifically creating a mask for him. The Employee was content with this, but for a short while.

The Employee persisted with the argument that he had been unfairly discriminated against because of his disability and referred a dispute to the Labour Court. The Employee’s case was that communication, and the ability to communicate, was not a requirement for being appointed as a Technologist. Even if it was, it was alleged it could not be a barrier to his promotion because he worked for the Employer for many years and had communicated in a satisfactory manner.

The Employer’s case was that Technologists assist in the development and sustainability of its products. The Employee would be required to communicate extensively with suppliers, plant employees and front-end users. This was to, inter alia, ensure that the Employer’s clients understand the composition and function of the Employer’s products.

The Labour Court, like the Constitutional Court in Damons, referred to TDF Network Africa (Pty) Ltd v Faris [2019] 2 BLLR 127 (LAC) to determine whether a requirement is inherent in the performance of the job, where the Labour Appeal Court found as follows:

“[37]…the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose”

The second obstacle is that the employer must prove that it would be impossible to accommodate the employee without imposing undue hardship or insurmountable operational difficulty. This requires the application of the principle of proportionality.

The Labour Court found that effective communication was one of the requisite competencies for the Technologist position. The Employee’s disability rendered him unable to fulfil this essential requirement of the position. The Court found that by promoting the Employee to the position of Lead Operator, the Employer had done what it could to reasonably accommodate the Employee. The Employee’s claim was thus dismissed.

As was found in Damons, the Employee could not gainsay the Employer’s allegations that he did not meet the inherent requirements of the job and that the Employer could not reasonably accommodate him without facing undue hardship.

Although sympathy may often drive discrimination disputes, parties should always be cognisant of the prevailing legal principles before prosecuting and defending such claims. Specialist legal advice should always be sought when dealing with matters of this nature.

Neil Coetzer

Neil Coetzer
Head of Employment

Courtney Wingfield

Courtney Wingfield
Senior Associate of Employment

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