UNFAIR DISCRIMINATION BASED ON DISABILITY

In the case of Smith v The Kit Kat Group (Pty) Ltd [2016] 12 BLLR 1239 (LC) an employee was disfigured and suffered from a speech impediment arising from an attempted suicide.

His employer initially indicated that they wanted him to return to work, but later refused to allow him to resume work on the basis that he was “cosmetically unacceptable”.

The Labour Court found that the employee was a “person with disabilities” in terms of the Employment Equity Act 55 of 1998 and was entitled to the protection it provided.

It found that the employer equated disability with incapacity and as a result thereof the employer’s conduct constituted discrimination.

The discrimination was unfair as there was no evidence that the employee was unfit to execute his duties.

Accordingly the Labour Court found that the employee had a claim for patrimonial loss arising from the salary that he did not earn as a result of the unfair discrimination.

The compensation claim would be for the humiliation and hurt the employee has suffered as a result of his unfair discrimination. The Court notes that the conduct of the employer was mala fide and that they acted to undermine the fundamental values of the labour relations in South Africa.

The Court found that a damages award for twenty four months’ salary and a compensation award for six months’ salary would be appropriate in these circumstances.

CAN A SHELTER LIMIT THE OCCUPANTS’ RIGHTS TO DIGNITY, FREEDOM, SECURITY AND PRIVACY IN TERMS OF THE LIMITATION SECTION AS ENVISAGED IN THE CONSTITUTION WITH REFERENCE TO THE MATTER OF DLADLA AND OTHERS V CITY OF JOHANNESBURG AND ANOTHER 2018 (2) SA 327 (CC); 2018 (2) BCLR 119 (CC):

The case of Dladla comes with a very long history.  In short the applicants in the Court a quo were some 11 of 33 occupants of an interim shelter that they were relocated to after being evicted from an initial property which they illegally occupied for some 20 years.  In the initial legal battle between the occupants and the land owners the Court ordered the City of Johannesburg to find an appropriate shelter for the occupants.  In an attempt to comply with the Court order the City of Johannesburg decided not to give the applicants housing in a temporary residential area, as provided for in terms of the Emergency Housing Policy in the National Housing Code.  Instead the City concluded that the best solution entailed a facilitation of what it viewed to be an “empowered” transition that would discourage a “dependency relationship” with the City and enable the occupants to take responsibility for their own lives.  The City developed an institute accommodation, which was a “managed-care policy” or temporary accommodation provision. This is a temporary facility intended to be a step in the realisation of the applicant’s right of access to adequate housing.

When the occupants finally reached their new shelter they were informed by the Shelter that accommodation at the shelter is subject to certain strict rules.  The 2 arbitrary rules subject to the current matter was the “lockout time” rule and the “family segregation rule.

The Lockout Time Rule:

According to this rule residents of the shelter had to leave the property by 08:00 in the morning and could not return until 17:30 in the evening.  The gates were locked at 20:00 with the result that late comers were not allowed to enter the premises.

The Family Separation Rule:

This provided for separate dormitories for men and women with the result that partners were not allowed to live together.

The applicants challenged the shelter rules on the basis that it infringed on their fundamental rights to dignity, freedom, security of person, privacy and access to adequate housing.

The City argued that the rules are necessary in order for the evictees to transition from homelessness to taking responsibility for their own lives.  The City further argued that it was necessary to implement these rules in order to address the real issues of homelessness.

The Applicants in turn argued that these rules affected them adversely.  The applicants argued that it was inhumane to expect of heterosexual partners to live and sleep separately with one couple arguing that the separation felt like a divorce.  Mothers were left to care alone for boys and girls under the age of 16 during the night.  Boys over the age of 16 was not allowed to stay with the mother and was placed with the other men in the shelter thus, they argued, causing perpetuated gender stereotypes.

The argument on Lockout times were on the basis that some of the applicants who worked night shifts were not allowed to sleep in the shelter during the day.   Those who were unemployed were left outside on the street and could not shelter from rain, violence and other issues one would face on the streets.

As stated before this matter has a long litigious history.  In Summary, the matter was first heard in the Johannesburg High Court.  There the Court agreed with the applicants on the basis that the infringements on their fundamental rights were not justifiable as envisaged in terms of Section 36 of the Constitution and thus interdicted the City of Johannesburg and the Shelter from implementing these rules.

The City of Johannesburg however appealed the Court a quo’s judgment.  In the Supreme Court of Appeal (SCA) the Court, interestingly enough, sided with the City of Johannesburg.  The SCA accepted that the impugned rules infringed the applicants’ constitutional rights but held that the infringement was reasonable.  It further accepted the City’s argument that, because the Shelter was not a permanent home but temporary accommodation, the applicants could not claim to have the same rights as they would have in their homes. In reaching this conclusion, the Supreme Court of Appeal did not consider the question whether the rules were introduced by a “law of general application” as set out in section 36(1) of the Constitution.  As a result, the Supreme Court of Appeal upheld the appeal and set aside the order of the High Court.

The occupants then approached the Constitutional Court in order to set aside the order of the Supreme Court of Appeal.  The occupants firstly asked for leave to appeal the Judgment handed down by the SCA, which leave was granted.  The Constitutional Court then considered the long history of the matter and the findings of the 2 previous Courts.  It was held that the rules infringed the applicant’s rights to dignity, freedom, security of persons and privacy.   The Court dealt with each individual Fundamental right and explained how these 2 rules infringed on it.  In Summary the lockout rule was found to be cruel, condescending and degrading.  The Applicant’s arguments as previously discussed was upheld. The family separation rule was in summary found to create a “vast chasm between parents and children, between partners and between siblings. It eroded the basic associative privileges that exists in and forms the basis of the family.”

It was thus confirmed that the fundamental rights of the applicants were indeed infringed on.  The Court then had to find whether the rules were “law of general application” and whether it is thus a justifiable limitation of their fundamental rights. The Constitutional Court however found that the rules under discussion were not rules of general application and therefore the City of Johannesburg could not rely on Section 36 of the Constitution to justify the limitations created by these rules.  The Court found therefore that the City has failed to show that the limitations flowing from the application of the impugned rules were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as required by Section 36(1) of the Constitution.

By

M Kirchner