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.