Ernstzen v Reliance Group Trading (Pty) Ltd (C 717/13)  ZALCCT 42 (18 May 2015)
An employee can only succeed in the Labour Court with a claim for automatically unfair dismissal based on discrimination based on disability if s/he can show that the real reason for the dismissal was that s/he was disabled. Where the employee has not established that s/he has a long-term physical impairment which substantially limits her/his prospects of entry into, or advancement in, employment, the reason for the applicant's dismissal may be incapacity and must be referred to arbitration in terms of s 158(2)(a) of the LRA.
The background to the claim is that the employee was injured in a car accident in May 2012. An incapacity hearing was eventually held on 19 April 2013. The employer offered the employee alternative employment. The employer formed the view that the employee was not capable to continue performing the duties for which was appointed and dismissed him for incapacity on 27 May 2013.
The employer said that the reason for dismissal was incapacity. The employee claimed that the real reason was disability and that this constituted discrimination, making his dismissal automatically unfair.
A preliminary issue was jurisdiction. If the reason for dismissal is incapacity, an unfair dismissal dispute must be arbitrated by the CCMA in terms of section 191(5)(a)(i) of the LRA. But if the reason for the dismissal is that the employer unfairly discriminated against the employee on the grounds of disability, the Labour Court has jurisdiction to hear the dispute.
The court was not slow to point out that the injury that led to his incapacity clearly has not 'transmogrified' into a long-term physical impairment which limited his prospects of entry into, or advancement in, employment. The court concluded that "he does not cross the hurdle of showing that he was disabled." On this basis the court found that it was an incapacity dispute which should be referred to arbitration, and that the facts of the case did not give the LC jurisdiction to hear the matter as an unfair discrimination dispute.
Extract from the judgment:
 The problem that arises is that of jurisdiction. If the reason for dismissal is incapacity, an unfair dismissal dispute must be arbitrated by the CCMA in terms of section 191(5)(a)(i) of the LRA. But if the reason for the dismissal is that the employer unfairly discriminated against the employee on the grounds of disability, this court has jurisdiction to hear the dispute.
 What, then, is the Court to do? In the recent case of Department of Correctional Services v PSA it referred to the guidance of the Constitutional Court and the Supreme Court of Appeal. As Nugent JA stated in Makhanya:
"[T]he power of a court to answer a question (the question whether a claim is good or bad) cannot be dependent upon the answer to the question. To express it another way, its power to consider a claim cannot be dependent upon whether the claim is a good claim or a bad claim. The Chief Justice, writing for the minority in Chirwa, expressed it as follows: And the Constutional Court in Gcaba said that:
'It seems to me axiomatic that the substantive merits of a claim cannot determine whether a court has jurisdiction to hear it.'"
"Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case". In this case, the applicant bases his case on a claim that the real reason for his dismissal was his disability. Does that mean that the court has jurisdiction to hear it, and that it will only decide whether it is a good or a bad claim after all the evidence is in?
 There can be no doubt that this court has jurisdiction to hear the applicant's claim as pleaded. But the principle raised by the Labour Appeal Court in Wardlaw is the following:
"[Section] 157(5), read with s 158(2), clearly envisages a situation where the Labour Court initially takes as correct the employee's allegation of what the reason for dismissal is and proceeds with the process of hearing the matter until it is 'apparent' to it that the reason for dismissal is a different one and it is one falling under section 191(5)(a). In such a case s 158(2) is triggered. Once it is apparent to the court that the dispute is one that ought to have been referred to arbitration, the court deals with the matter in terms of either s 158(2)(a) or (b). It cannot deal with it outside the ambit of those provisions. Accordingly, it has no power to proceed to adjudicate the dispute on the merits simply because it is already seized with the matter. To do so would be in conflict with provisions of s 157(5) and 158(2) of the Act. I debated with Mr De Kock whether it is possible for the Court, at this stage, and without having heard evidence, to consider what the true reason for dismissal is. His argument is that that is, in appropriate circumstances, what the Labour Appeal Court enjoins us to do in order to be cost-effective, to ensure an expeditious resolution of the dispute and to avoid a duplication of proceedings.
The question that arises from s 158(2) is: when does it become apparent to the Labour Court that a dispute is one that ought to have been referred to arbitration? To answer this question within the context of a dismissal dispute, it is necessary to bear in mind the provisions of s 191(5)(a) and (b). In terms of those provisions the employee's allegation of what the reason for dismissal is provisionally channels the dispute to either arbitration or adjudication after conciliation has failed.
In the light of the above it seems to us that the employee's allegation of the reason for dismissal as contemplated in s 191(5) is only important for the purpose of determining whether dispute should be referred of the conciliation but the forum to which it is referred at that stage is not necessarily the forum that has jurisdiction to resolve the dispute on the merits finally. That may depend on whether it does not later appear that the reason for dismissal is another one other than the one alleged by the employee and is one that dictates that another forum has jurisdiction to resolve the dispute on the merits. Once a dispute has been referred to, for example, the Labour Court, the Labour Court provisionally assumes jurisdiction. That assumption of jurisdiction is conditional upon its not later becoming 'apparent' to the court within the contemplation of s 158(2) of the Act that the reason for the employee's dismissal is one that falls within s 191(5)(a) of the Act. We say it is provisional and conditional because if it later becomes 'apparent' that the dispute is one that ought to have been referred to arbitration, the court will decline jurisdiction and have the dispute referred to arbitration.
[In this case] the court a quo heard oral evidence and examined the evidence to establish whether the reason for dismissal alleged by the employee was the reason for the dismissal. In terms of s 158(2) of the Act it seems that it is not necessary to go that far. If 'it becomes apparent [to the Labour Court] that the dispute ought to have been referred to arbitration', this will suffice for the purpose of the invocation of s 157(2)(a) or (b). Probably, the drafters of the Act wanted to avoid, as far as possible, that the court should go too much into the matter to establish the true reason before invoking s 158(2) because that would not be cost-effective, could undermine the objective of an expeditious resolution of disputes and could also result in a duplication of proceedings."
 The Court had to consider that position in the light of the common cause facts before it, without having heard evidence.
 It is common cause that the applicant was injured in a car accident; that the respondent formed the view that he had been incapacitated for his duties; that an incapacity hearing was held; and that the respondent gave that as its reason for dismissal. Those facts have to be considered against the applicant's claim that he had become disabled and that that was the real reason for his dismissal.
 The principles relating to disability and discrimination were considered eloquently and at length by Murphy AJ (as he then was) in IMATU v City of Cape Town. He considered the discrimination analysis in the framework of section 6 of the Employment Equity Act. He noted that the approach to unfair discrimination to be followed by courts has been spelt out in Harksen v Lane NO. The first enquiry is whether the provision [in an employment policy or practice] differentiates between people or categories of people. The second leg of the enquiry asks whether the differentiation amounts to unfair discrimination. This requires a two-stage analysis. Firstly, does the differentiation amount to "discrimination"? If it is on a specified ground, discrimination will have been established. If it is not on a specified ground, then whether or not there was discrimination would depend upon whether, objectively, the ground was based on attributes and characteristics which had the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.
 The court also pointed out that the word "disability" is not defined in the EEA, but item 5 of the Code of Good Practice: Key Aspects on the Employment of People with Disabilities, enacted in terms of the EEA, defines "people with disabilities" as "people who have a long-term or recurring physical or mental impairment which substantially limits the prospect of entry into, or advancement in, employment." The definition, he held, is therefore not based on the medical model of disability but rather on the effect the impairment has in limiting the complainant's entry into, or advancement in, employment.
 Although this case concerns s 187(1)(f) of the LRA and not the EEA, similar principles apply. The question to be asked is whether the employer has discriminated against the applicant; and if so, whether it is based on disability.
 The applicant can only succeed with the claim for automatically unfair dismissal based on discrimination if he can show that the real reason for his dismissal was that he was disabled. Mr De Kock referred to Mouton v Boy Burger (Edms) Bpk where it was held that, in cases involving dismissals for alleged discriminatory reasons, the employee must produce sufficient evidence to raise a 'credible possibility' that the main or dominant reason for the dismissal was some form of discrimination. And in Wardlawthe LAC held that, if an employee fails to raise a prima facie case that the dismissal was automatically unfair, and the employer persuades the court that it was for reasons relating to the employee's conduct or capacity, the matter must be stayed and referred to arbitration.
 In my view, even on the facts as pleaded by the applicant, he does not cross the hurdle of showing that he was disabled. There is no indication on the pleadings or in the evidence that has been introduced by way of an expert witness report that the applicant has a long-term physical impairment which substantially limits his prospects of entry into, or advancement in, employment.
 It appears from the report of the expert witness, an occupational therapist, that the applicant secured employment as a fitter and turner for approximately six months with in about two months of his dismissal; and he then started working for a new employer in a similar position to the one that it occupied at the respondent from about January 2014. The injury that led to his incapacity clearly has not transmogrified into a long-term physical impairment which has limited his prospects of entry into, or advancement in, employment.
 To use the test in Wardlaw, it is apparent that the reason for the applicant's dismissal is incapacity and that it should therefore be referred to arbitration in terms of s 158(2)(a) of the LRA. I must stress that that will not nonsuit the applicant. The dispute will be referred to arbitration. The applicant will still have a full and fair hearing where he can lead evidence and where the employer will have to show that his dismissal (for incapacity) was fair.
 Although this court had jurisdiction to consider the dispute that the applicant referred, as set out in his pleadings, it has become apparent that the dispute is one that ought to have been referred to arbitration. In terms of s 158(2) of the LRA, therefore, the Court has to stay the proceedings and refer it to the CCMA for arbitration.
 This Court is enjoined to take into account the requirements of law and fairness when deciding on costs. The respondent raised the point that led to the ruling in this judgement at a very late stage after it had procured the services of a new legal team. The applicant did not have an adequate opportunity to consider whether he should proceed with litigation in this court. This ruling also does not bring the dispute between the parties to an end. It is merely referred to a different forum. In all these circumstances, I do not consider a costs order to be appropriate.
 I therefore make the following order:
24.1. The proceedings are stayed in terms of section 158(2)(a) of the Labour Relations Act and the dispute is referred to arbitration under the auspices of the Commission for Conciliation, Mediation and Arbitration.
24.2. There is no order as to costs.