Smith v Kit kat Group (Pty) Ltd (JS787/14)  ZALCJHB 362;  12 BLLR 1239 (LC) (23 September 2016)
Disability is not synonymous with incapacity. An employer must comply with its obligation under the Disability Code to explore how the employee's disability could be accommodated. Such an exercise was essential for any discrimination against the applicant to be considered fair. An employee is incapacitated if the employer cannot accommodate him /her or if refusing an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.
The employee was employed by the Company as a general manager in June 2005 at its head office in Pretoria West. He was a valued, well respected senior employee with very good working relationships with other employees, and reported directly to the CEO. He attempted suicide for unknown reasons in September 2013, by shooting himself in the mouth. This left him severely injured and his face disfigured.
The employee was granted leave, some of which was unpaid, and was given a loan of R80 000 by the employer during this period, to assist him. The employee was assured that as soon as he had recovered, he could come back to work. After nearly 4 months, the employee was ready to return to work in February 2014. The employer was provided with a report from the employee's psychiatrist, confirming that his speech had improved to the extent that he could make himself understood, that he was mentally and intellectually stable and intact, and that it was unlikely that the unfortunate circumstances would re-occur. The employer responded that although he had physically recovered and was mentally able to work, he was 'not facially acceptable', and his presence would remind employees of the unfortunate event. The employer suggested he pursue a disability claim and that the issue of returning to work be revisited at end March 2014.
Following various meetings and correspondence between the parties, the employer by April 2014 made it clear it was not prepared to allow the employee to return to work due to him being 'cosmetically unacceptable' and as one could only understand 70 to 80% of what he was saying, all of which meant he was not capable of performing his duties in full. This was notwithstanding the employee confirming that he was fit and ready to work, supported by a second doctor's report that he was able to go back to work. The employer also sought to recover its loan to the employee.
The employee sought legal advice and tendered his services. When no response was received, he initially instituted unfair labour practice proceedings on the basis of unfair suspension, as he had never been formally dismissed. Subsequently, the employee instituted unfair discrimination proceedings in the Labour Court based on disability, being one of the listed grounds under s.6(1) of the EEA.
The LC accepted that the attempted suicide resulted in the employee's face being disfigured, and that he had a speech impediment as a result of the physical damage to his mouth and jaw; and that these were permanent disabilities that would be apparent to any third party observer. The LC further accepted that these were disabilities in terms of the Code of Good Practice on the Employment of Persons with Disabilities. Strangely, the Court appeared to accept this without specifically addressing whether the circumstances of the disability excluded the Code from applying under para 5.3.3(c).
The LC found that the employer did nothing to comply with its obligation under the Code to explore how the employee's disability could be accommodated. Such an exercise was essential for any discrimination against the applicant to be considered fair. The Court confirmed that "disability is not synonymous with incapacity." An employee is incapacitated if the employer cannot accommodate him /her or if refusing an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair, but dismissing an employee who is disabled but not incapacitated is unfair.
The Court showed its strong displeasure at the employer's conduct. It found that the employer's description of the employee's face as being 'cosmetically unacceptable' was appalling. The LC also found that accommodating the employee would not have constituted an unjustifiable hardship for the employer. If the employee had recommenced working and it was found at any subsequent stage that he was unable to fulfil his duties to the 'full' extent, the employer could then have instituted incapacity proceedings under the LRA.
In this case the LC felt it was appropriate, due to the facts of the case, to award both damages and compensation. The Court recognised it was very difficult to quantify in financial terms the hurt and humiliation suffered by being discriminated against, and said a balance was needed: awards should give effect to the purpose of the anti-discriminatory measures in the Employment Equity Act and should be sufficiently high to deter other persons from similar behaviour in the future, but should not be so excessive that they induce a sense of shock.
Taking all the circumstances of this case into consideration, the LC awarded the employee damages equivalent to 24 months' salary, which is comparable to the maximum compensation award for an automatic unfair dismissal in terms of Section 194(3) of the LRA. In addition, the LC awarded compensation of 6 months' salary for the hurt and humiliation the employee suffered. All this effectively meant the employee was awarded over R1,5 million in damages and compensation, plus the costs of the court proceedings.
Subsequent to this judgment, the employer sought leave to appeal the outcome to the LAC, but this application was rejected.
Extract from the judgment:
Was the applicant discriminated against by the respondent?
 On the evidence, it is untenable that as a result of the applicant's attempted suicide, his face was left disfigured, and he now had a speech impediment as a result of physical damage cause to his mouth and jaw. These are permanent conditions. These disabilities are also apparent to any third party observer.
 In my view, the injuries suffered by the applicant and the consequent effect thereof left the applicant with a disability as contemplated by the EEA, which defines 'people with disabilities' as meaning '... people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment'. In the Code of Good Practice on employment of people with disabilities published in terms of the EEA ('the Code'), it is reflected that the scope of protection for persons with disabilities in employment focuses on the effect of a disability on the person in relation to the working environment, and not on the diagnosis or the impairment per se. The Code defines persons with disabilities as being persons that:
- 'have a physical or mental impairment;
- which is long term or recurring; and
- which substantially limits their prospects of entry into, or advancement in employment.'
 The respondent contended that because of his speech impediment, which made it difficult to understand the applicant, the applicant was not able to 'fully' do his job. Assuming for the purposes of argument that the respondent's concerns in this regard, at least on a prima facie basis, may have been justified, the fact is that the respondent presented no evidence and conducted no process to justify or even remotely substantiate this point of view. What the respondent needed to do was to have conducted a proper incapacity investigation into what consequences this speech impediment would have on the applicant's ability to discharge his duties. The respondent needed to properly and objectively assess to what extent the applicant's ability to interact with fellow employees or suppliers was impacted upon (the applicant had little dealings with customers). Further, and if there was an impact, it needed to be explored how the applicant could possibly be accommodated. But what the respondent did was to simply assume that disability automatically equates to incapacity, which is not so. As the Court said in Standard Bank.
'Disability is not synonymous with incapacity.... An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.'...............................................
 The point is that the respondent did absolutely nothing where it came to exploring with the applicant, if accepting that his disability impacted on his abilities, could be accommodated. Such an exercise was essential for any discrimination against the applicant to be considered fair
 I cannot accept that accommodating the applicant in this instance would constitute unjustifiable hardship for the respondent, especially considering the approach adopted by the applicant, being that he is fit for normal work. What possible hardship can the respondent suffer by just allowing the applicant to prove this, in him simply returning to his normal duties? Also, and considering that no one had been appointed in the applicant's position, there simply could be no disruption in the respondent's business if the applicant was allowed to work.
 The respondent also tried to establish some or other hardship based on the applicant's facial features. The respondent suggested that it traumatized the applicant's fellow employees. There was no evidence to justify this suggestion. Both Johan and Mahomed, the only witnesses to testify for the respondent, stated that they had no concerns about the applicant's facial features. It remains a complete mystery to me why the respondent, on several occasions, would describe the applicant as 'cosmetically unacceptable'. I, in any event, find such an approach to be appalling. To in effect exclude the applicant from working because of how he looked, especially considering he was not employed as a runway model for a fashion house, is simply inexplicable. I consider any reliance by the respondent on the concept of the applicant being 'cosmetically unacceptable' to be patently unfair
The issue of relief
 Considering that the applicant was indeed unfairly discriminated against by the respondent, this Court has the following powers, in terms of Section 50(2) of the EEA:
'If the Labour Court decides that an employee has been unfairly discriminated against, the Court may make any appropriate order that is just and equitable in the circumstances, including-.................................................
- payment of compensation by the employer to that employee;
- payment of damages by the employer to that employee....'
 In SA Airways the Court held:
'...The EEA draws a distinction between 'compensation' and 'damages', and does not regard them as the same......................................
......The intention must have been that they connote different kinds of award. In my view, the only rational meaning that can be given to the terms is that 'damages' connotes a monetary award for patrimonial loss and 'compensation' connotes a monetary award for non-patrimonial loss (including a 'solatium').'
 Based on a consideration of all these factors as set out above, I believe that an appropriate damages award in terms Section 50(2) of the EEA is an amount equivalent to 24(twenty four) months' salary, which is comparable to the maximum compensation award for an automatic unfair dismissal in terms of Section 194(3) of the LRA. As to an appropriate award of compensation as a solatium, I consider that an additional award of 6(six) months' salary would be appropriate. Overall, in exercising by discretion, I believe this to be fair to both parties, considering what happened as a whole.
 Accordingly, and based on the applicant remuneration of R51 339.98, as extracted from the applicant's last normal pay slip, for a total period of 30(thirty) months, the applicant is awarded R1 540 199.40 in damages and compensation.