Standard Bank of South Africa v CCMA & others (2007) 16 LC 8.29.11

Principle:

(1)   The requirement that employers should make reasonable efforts to accommodate disabled employees is balanced against imposing unreasonable hardship on employers.

(2)   Employers are required to adopt a four-stage inquiry before dismissing employees for incapacity. The questions to be asked are: (i) whether the employee is unable to perform his or her work, and if not; (ii) the extent to which the employee is capable of working; (iii) whether the employee's work circumstances can be adapted and, if not; (iv) whether alternative work is available.

(3)   If an employer dismisses an incapacitated employee without taking these steps, the dismissal is not only unfair, but also automatically unfair, because people with disabilities constitute a designated group.

(4)   Disability must be distinguished from incapacity; dismissing an employee who is disabled but not incapacitated is automatically unfair, whereas dismissing an employee who is incapacitated may be fair. In the case of incapacitated employees, dismissal is fair where the obligation to accommodate the employee imposes unreasonable hardship on the employer. Hardship in this context means more than mere inconvenience.

Facts:

After 17 years service, the employee was involved in a motor accident. Her injuries later caused a severe back pain. After resuming work, the employee found that she could not cope with traveling. She was assigned light administrative work. Finding this uninspiring, the employee applied for more responsible office work. She was able to undertake telephonic sales work if she could use a headset, but the bank declined to purchase a headset for her. The employee was again assigned tasks which did not involve using a telephone, including paper-shredding, which she found demeaning and painful. The employee's application to be medically boarded was refused. A few months later, the bank informed the employee that she would be appointed to the home loans division, but later decided to terminate her services on the grounds of incapacity, due to continuing absenteeism. The employee was dismissed two years after the accident. The CCMA commissioner held that the dismissal was unfair, and awarded the employee compensation.

The Court noted that the commissioner had accepted that the bank had been patient, tolerant and even charitable to the employee. However, he had also found that the bank had failed to obtain a report by an occupational therapist and to consult the employee about possible adaptations to her workstation, as had been recommended by a medical practitioner. The employee's request for a headset to assist her in telephonic work had also been ignored, and the bank had also refused to purchase a special chair for the employee, and to allow her to use its computers. It had also not considered the possibility of appointing the employee to a half-day position. These omissions meant that the bank had not complied with the Code of Good Practice: Dismissal and the Code relating to the treatment of people with disabilities.

The requirement that employers should make reasonable efforts to accommodate disabled employees is balanced against imposing unreasonable hardship on employers. The Court held that employers are required to adopt a four-stage inquiry before dismissing employees for incapacity. The questions to be asked are: (i) whether the employee is unable to perform his or her work, and if not; (ii) the extent to which the employee is capable of working; (iii) whether the employee's work circumstances can be adapted and, if not; (iv) whether alternative work is available. If an employer dismisses an incapacitated employee without taking these steps, the dismissal is not only unfair, but also automatically unfair, because people with disabilities constitute a designated group. The obligation to accommodate a disabled employee is accordingly even more onerous than the obligation to take affirmative action measures.

The Court held further that where an employer pleads that a disabled employee has been dismissed because of excessive absenteeism, it must establish whether this was caused by the disability, because lengthy unpaid leave may be a reasonable adaptive measure. However, disability must be distinguished from incapacity; dismissing an employee who is disabled but not incapacitated is automatically unfair; whereas dismissing an employee who is incapacitated may be fair. In the case of incapacitated employees, dismissal is fair where the obligation to accommodate the employee imposes unreasonable hardship on the employer. Hardship in this context means more than mere inconvenience.

Applying the requirements laid down by the Employment Equity Act 55 of 1998, the Labour Relations Act 66 of 1995 and the applicable codes, the Court held that the bank had failed properly to investigate the nature and extent of the employee's disability. As a result, the bank could not properly exercise its duty to consult the employee. In the final analysis, the bank had assessed the employee's performance against the standard of a fit employee, and had dismissed her for poor performance. The employee's admission that she could not perform her normal work had to be seen in the context of her attempts to be granted an early retirement. Although the bank had not pertinently relied on undue hardship to justify the dismissal, it could not do so as no evidence had been led in that regard.

The Court held further that by failing to make reasonable efforts to accommodate the employee, the bank had discriminated against her, and had dismissed her in bad faith. The Court disagreed with the arbitrator that the bank had gone to "great lengths" to assist the employee. The Court added that the dismissal was also procedurally unfair because the bank had not followed the procedure laid down by the codes.

Since the award was reasonable, there was no basis on which it could be reviewed. The application was dismissed with costs.

Extract from the judgment:

[59]   The bank failed to apply items 10 and 11 of Schedule 8 of the Code of Good Practice: Dismissal under the Labour Relations Act 66 of 1995 ("LRA") ("the LRA Code"), the Code of Good Practice on the Employment of People with Disabilities under the Employment Equity Act 55 of 1998 ("EEA") ("the EEA Code"), the Department of Labour's Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002) ("the DOL Code") and its own incapacity management guidelines ("the bank's guidelines"). These instruments give effect to the Constitution of the Republic of South Africa, 1996 ("the Constitution"), the LRA, the EEA, international and foreign law and best practice.

Law and best practice
[60]   The origin of the test for fairness of the dismissal of an employee with disabilities is the Constitution. Various foreign and international human rights and labour instruments seek to re-enforce the protection of people with disabilities and prevent discrimination against them. The overarching policy underpinning the protection of disabled people is to give effect to human rights. In a claim based on an incapacity dismissal, the intersecting constitutional rights are rights to equality, human dignity, the right to choose a trade, occupation or profession freely and to fair labour practices.

Equality

[61]   The Constitution, several statutes including the EEA and the LRA and Codes of Practice protect employees with disabilities as a vulnerable group because they are a minority with attributes different from mainstream society. Unemployment, lower wages, poorer working conditions and barriers to promotion plague people with disabilities here and abroad. Their employment rate is less than a third of the general population. Many employers tend to exclude and marginalise employees with disabilities not merely because the disability impairs the employee's suitability for employment, but also because the employer regards the disability as an abnormality or flaw. When the attitude that disability is the problem of the disabled individual, not society, that the workplace is hazardous for disabled people and that they need to be looked after combines with paternalism, charitableness, ignorance and misinformation about disabilities, the result is that more disabled people are dismissed than accommodated. Some employers may find it more convenient to budget for a disability dismissal than to attempt to accommodate an employee. When these attitudes feature in decisions about people with disabilities, they can obscure innate prejudice, stereotyping and stigma. Able people are more inclined to bear such attitudes than disabled people.

[62]   Our Constitution, like its Canadian counterpart, strives to inculcate an inclusive mindset towards all vulnerable people. In a case concerning the accommodation of cultural diversity, the Constitutional Court ("CC") digressed to endorse an inclusive approach towards people with disabilities. Referring to Eaton v Brant County Board of Education, the CC acknowledged how easily disabled people are pushed to the margins of society.

[64]   Difference renders people with disabilities incapable of conforming to the norms of mainstream society. Living with a disability must be hard enough without having the additional burden of conforming to mainstream society. The least that mainstream society can do is to adapt to and embrace their difference to achieve substantive equality. After all, the essence of true equality is the accommodation of difference.

Dignity

[65]   Integration and inclusion in mainstream society aim not only to achieve equality but also to restore the dignity of people with disabilities. Dignity, for employees with disabilities, is about being independent socially, and most of all, economically, about managing their normal day to day activities101 with minimum hardship for themselves and others and about contributing to and participating in society. It is about self-respect and self worth...

[66]   When employers accommodate employees effectively, they restore dignity to employees. Restoring the dignity of employees is also about returning the employee to the same job if possible. By returning Hoffman to his job as cabin attendant for South African Airways, the Constitutional Court aimed specifically at restoring his dignity.

Freedom of trade, occupation and fair labour practices

[67]   Both the employer and the employee have the right to choose a trade, occupation and profession freely and to fair labour practices. Only an employee has the right not to be dismissed unfairly. The LRA, the EEA and their Codes enable the parties to strike the appropriate balance between their respective rights by providing processes for avoiding unfair dismissal. Reasonable accommodation of the employee and unjustified hardship to the employer operate as countervailing forces to balance the respective rights of the parties. If the employer cannot reasonably accommodate the disabled employee without unjustifiable hardship, the employer may dismiss the employee.

Defining disability

[68]   The first question to ask in an incapacity investigation is: Is the employee a person with disabilities in that she has a long-term recurring physical or mental impairment which substantially limits her prospects of entry into or advancement in employment? Defining disability in relation to employment shifts the focus from the diagnosis of the disability to its effect on both the employee's ability to work and to find work.

[69]   This enquiry is usually factual but can become legal if interpretation disputes arise. To cast the interpretive net widely, Australia and Canada define "disability" to include respectively "imputed" and "perceived" impairment. The Supreme Court of Canada found that a gardener and a policeman to whom the City of Montreal had refused employment merely because of a handicap deserved protection against discrimination. Their handicap was an anomaly of the spinal column which did not prevent them from performing their normal duties. If disability is interpreted restrictively rather than purposively, the entire purpose of preventing discrimination may be thwarted. For instance, if a severely myopic job applicant who is refused a job as a pilot is considered not to have a disability because she corrects her sight with spectacles, or if a diabetic is not a person with disabilities because he mitigates his condition with medication, the protection against discrimination will be lost to many disabled people.

The LRA guidelines for incapacity dismissal

[70]   As an employer bears the onus of proving an employee's incapacity to justify dismissing her, the LRA guidelines for incapacity dismissal contemplates a four-stage enquiry before an employer effects a fair dismissal. The bank's guidelines also imported the LRA guidelines.

[71]   An enquiry to justify an incapacity dismissal may take a few days or years, depending mainly on the prognosis for the employee's recovery, whether any adjustments work and whether accommodating the employee becomes an unjustified hardship for the employer. To justify incapacity, the employer has to "investigate the extent of the incapacity or the injury . . . (and) . . . all the possible alternatives short of dismissal".

[72]   Stage one: The employer must enquire into whether or not the employee with a disability is able to perform her work. If the employee is able to work, that is end of the enquiry; the employer must restore her to her former position or one substantially similar to it. Where possible, the job should correspond to the employee's own choice and take account of her individual suitability for it. If the employee is unable to perform her work and her injuries are long-term or permanent, then the next three stages follow.

[73]   Stage two: The employer must enquire into the extent of which the employee is able to perform her work. This is a factual enquiry to establish the effect that her disability has on her performing her work. The employer may require medical or other expert advice to answer this question.

[74]   Stage three: The employer must enquire into the extent to which it can adapt the employee's work circumstances to accommodate the disability. If it is not possible to adapt the employee's work circumstances, the employer must enquire into the extent to which it can adapt the employee's duties. Adapting the employee's work circumstances takes preference over adapting the employee's duties because the employer should, as far as possible, reinstate the employee.

[75]   During this stage, the employer must consider alternatives short of dismissal. The employer has to take into account relevant factors including "the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement" for the employee.

[76]   Stage four: If no adaptation is possible, the employer must enquire if any suitable work is available.

Reasonable accommodation

[77]   Many jurisdictions require employers to use reasonable accommodation to achieve substantive equality and prevent discrimination against people with disabilities. Accommodating disability as a difference operates to prevent adverse-effect discrimination flowing from employment rules, procedures or standards. For instance, in the US, the definition of "discrimination" includes not making reasonable accommodations.

[78]   The EEA elaborates on the adaptations referred to in the LRA guidelines. It defines "reasonable accommodation" as "any modification or adjustment to a job or to a working environment that will enable a person from a designated group to have access to or participate or advance in employment". The EEA Code expatiates on ways of accommodating people with disabilities.

[79]   Although neither the EEA nor the EEA Code define discrimination, the EEA Code recognises that unfair discrimination is perpetuated in several ways. Furthermore, people with disabilities constitute a designated group. Members of designated groups enjoy enhanced protection under the EEA, especially in the form of affirmative action. The Constitution and the EEA prohibit discrimination on the grounds of disability. Dismissal on a prohibited ground of discrimination is automatically unfair. Implicit, therefore, in the duty to accommodate employees is the employer's obligation to prevent discrimination.

[80]   Consequently, if an employer fails to reasonably accommodate an employee with disabilities, the dismissal of that employee is not merely unfair but automatically unfair. An employer who unreasonably refuses to make any accommodation that falls short of unjustified hardship, or refuses to give reasons for not making an accommodation is irrational...

[84]   Because it protects against automatically unfair dismissal, reasonable accommodation is more onerous than a general obligation to implement affirmative action. Although reasonable accommodation is sometimes used synonymously with affirmation action, in relation to accommodating people with disabilities to avoid dismissal it is a term of art with most jurisdictions defining it similarly. Reasonable accommodation of people with disabilities is also more onerous than accommodating religious and cultural beliefs. Practicing religious and cultural beliefs is a freedom whereas disability is an imposition. Furthermore, people with disabilities are a cost to the economy while vulnerable religious and cultural groups are not obviously so. Hence the jurisprudence on reasonable accommodation for religious and cultural beliefs and possibly other vulnerable groups may not apply to disability.

[85]   Another difference between an employer's obligations to implement affirmative action and reasonably accommodate people with disabilities is that measures to affirm employees apply generally to all employees within the group, whereas to accommodate employees with disabilities the employer has to tailor modifications and adjustments for the specific disabilities of each employee.

[86]   What the modification or adjustment should be calls for a pragmatic common sense approach to explore, perhaps even experiment, to establish what will work best in the particular circumstance of the employee, the nature of her post and the configuration of the workplace. The following standard adopted in Ontario is worth importing into our jurisprudence:

"The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation and ensures confidentiality."

[87]   As the employer bears the onus of proving that it made attempts at accommodating the employee, the employer must consider all options. The employer has to properly motivate whatever accommodation is tendered or refused. In Guibord v Canada the Treasury Department, the employer refused to accommodate the employee, a document cataloguer, on a half-day basis because the department would have had to hire someone else for half days for approximately three-months. It would have taken one month to train anyone. At a time when the department had to "do more with less", hiring another person was not an option. The department advanced persuasive evidence for not pursuing the half-day option for operational reasons.

[88]   Whereas granting paid leave of absence to recuperate may be an undue hardship for some medium and small-sized enterprises, for large corporations that contribute generously to social investment projects, protracted paid leave should pose no hardship. In McGill University Health Centre (Montreal General Hospital) v Syndicat des employés de l'Hôpital général de Montréal, where the parties had collectively agreed on a rehabilitation period of three years, the employer was not absolved of its duty to accommodate the employee. The Supreme Court of Canada held that the right to equality is a fundamental right, and the parties could not agree to a level of protection that is lower than the one to which employees are entitled under human rights legislation.

[89]   Reasonable accommodation includes adapting the way performance is measured. In Australia, it is indirect discrimination on the ground of disability to require a person to comply with a requirement or condition with which persons without the disability are able to comply but with which a disabled person is not able to comply. In Canada, a Trial Division Court rejected the merit principle applied to a job applicant afflicted with multiple sclerosis, because the transport department failed to discern the specifics of the applicant's situation.

[90]   Reasonable accommodation prevents absenteeism and unemployment. In a dispute about a non-culpable dismissal for excessive absenteeism caused by disability, the question is whether an employee's absenteeism is caused by the disability or whether an employer has fulfilled its duty to accommodate to the point of hardship. The Employment Appeal Tribunal in the UK found in Paul v National Probation Service that refusing to employ Paul, who had a chronic depressive illness, was unjustified because, if the employer had made reasonable adjustments, it might have employed him. All the evidence in Nottinghamshire County Council (NCC) v Meikle pointed towards lengthy absence by Meikle, a teacher, being a result of her employer, the NCC, failing for a long time to take appropriate steps to cope with her disability.

[91]   The search for accommodation is a multi-party inquiry. Although the principal responsibility for conducting the enquiry rests with the employer, at the very least, the employer must confer with the disabled employee, her trade union or workplace representative. To the extent that the employer needs information that it does not have, such as medical reports, it must also consult with medical or other experts and possibly other employees. Disregarding medical advice to accommodate an employee is discrimination. The process should be interactive, a dialogue, an investigation of alternatives conducted with a give and take attitude. Outright refusal to accommodate shows a degree of inflexibility contrary to the spirit and purpose of the duty to accommodate.

[92]   Finding an accommodation and proving it to be reasonable is an onus resting on the employer. So is the onus of proving that a reasonable accommodation is unjustifiable. For her part, an employee with disabilities must prove that an accommodation that she proposes is reasonable on the face of it. She must also accept a reasonable accommodation and facilitate its implementation, even if it is a less than perfect or preferred solution. Otherwise, the employer who tenders a reasonable accommodation discharges its duty if the employee rejects it unreasonably. If the employee rejects the tender, the employer may lawfully dismiss the employee on the grounds of her incapacity.

[93]   In some circumstances, refusing to accommodate a person with a disability is not discrimination. For instance, if several employees compete for a post, the one amongst them who wears spectacles does not qualify for special treatment in the form of an accommodation for as long as the disability is not a disqualifying criterion. However, a person who wears spectacles is visually impaired and is by definition a person with a disability.

[94]   Disability is not synonymous with incapacity. Under Canadian law, adjudicators may not find a person incapable unless they are satisfied that the needs of the person cannot be accommodated except with undue hardship. 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.

Unjustifiable hardship

[95]   Arising from stage three of a fair dismissal process under the LRA Code, the EEA Code sets the threshold to balance the employer's obligation to accommodate with the employer's circumstances. Unjustifiable hardship is the threshold at which employers are relieved of their obligation to accommodate disabled employees.

[96]   The EEA Code defines "(u)njustifiable hardship" as:

"Action that requires significant or considerable difficulty or expense. This involves considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business."

[97]   The EEA Code also acknowledges that an accommodation that is an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time.

[98]   Unjustifiable hardship means "(m)ore than mere negligible effort". Just as the notion of reasonable accommodation imports a proportionality test, so, too, does the concept of unjustifiable hardship. Some hardship is envisaged. A minor interference or inconvenience does not come close to meeting the threshold but a substantial interference with the rights of others does. An employee's demand to be retained in a mail room post where he was accommodated after he sustained a back injury as a cargo handler could be unjustified hardship to other employees, if they are entitled to compete for the mail room post in terms of collective agreements. To succeed, the employee has to prove special circumstances, for example, that the employer has deviated from the agreements previously.

[99]   No hard and fast rule can be set as to what constitutes undue hardship. Each case has to be determined on its own facts. Consequently, it is not a hard and fast rule that hiring two people instead of one, hiring an assistant for the disabled employee or creating a post when a vacancy does not exist, will amount to undue hardship.

[100]   The bank refused to accommodate Ferreira on three grounds: the costs of the accommodation, the risk to Ferreira's health and Ferreira's admission that she could not work. How have these defences to the duty to accommodate fared in other jurisdictions?

The bank's non-compliance with EEA, LRA, Codes and guidelines

[106]   When interpreting the EEA and its Code, the LRA and its Code, the DOL Code and the bank's own guidelines the court must have regard to the constitutional values and best practice discussed above. Ferreira's condition indisputably met the definition of "disability". The bank still had to prove Ferreira's incapacity to justify dismissing her. Neither Ferreira's admission that she could not work nor her omission to lodge a formal grievance absolves the bank of this onus.

Duty to investigate

[107] The obvious starting point of such an incapacity investigation was to carry out the recommendations of three medical experts to obtain an OT report. Without an OT report, the bank could not undertake any of these investigations to decide whether and how it should accommodate Ferreira or to dismiss her. In all the foreign disability cases cited in this judgment, medical or other expert opinion was indispensable for making decisions about people with disabilities.

[108] The bank therefore had to require Ferreira to undergo an OT assessment and to bear the costs. Insofar as the bank regarded an OT report as not being cost effective, the bank was unreasonable and unfair. The bank, being the largest in Africa, could well afford the cost of an OT report. Furthermore, the critical need for the report out-weighed its cost. The consequences of not having an OT report for Ferreira, namely, her dismissal, outweighed the costs of the report. Equally, the consequences for the bank, that is, of having its decision to dismiss her declared unfair, also outweighed the costs.

[109] Neither the bank and Ferreira nor the court can say whether an OT assessment would have recommended changes that would have diminished her incapacity or allowed her to work longer hours. However, without obtaining and possibly implementing the report, the bank could not dismiss it as being irrelevant or not cost effective.

Duty to consult

[110] When investigating reasonable accommodation, the bank had to allow Ferreira the opportunity to state a case in response and to consult with technical experts to establish appropriate mechanisms to accommodate her, especially as her injury was the reason for her frequent absence from work. The bank failed to consult meaningfully with Ferreira and technical experts to assess if her disability could be reasonably accommodated. It made no genuine effort to re-integrate her into work or to minimise the impact of her disability.

[111]   For consultations to be meaningful, the bank and Ferreira, firstly, had to have sufficient relevant information. Without the technical expertise of the OT, neither party could found the consultations on a sound, objective and factual basis. Nor could the bank justify as rational its decision to dismiss her instead of accommodating her appropriately. Secondly, the bank had to keep an open mind to suggestions from Ferreira and the experts. It did not do so.

[112]   The failure to consult Ferreira and an OT meaningfully renders the decision to dismiss her unreliable because the bank did not test its decision with them.

Duty to accommodate

[113]   The bank's duty to accommodate stems from its overriding obligation not to discriminate. Quite simply, the bank had a legal obligation to accommodate Ferreira to ensure that she could continue to work. It also bore a reverse onus of ensuring that it did not compel Ferreira or encourage her to terminate her employment. From the following, it emerges that the bank did encourage her to leave...

Undue hardship

[137]   The bank did not pertinently raise undue hardship as a defence. Its primary defence was that Ferreira was not fit to work. Costs as an issue arose during the evidence in response to Ferreira's testimony that the bank refused to supply her with a headset and obtain an OT report because they were not cost effective. For the largest bank in Africa, employing 42 265 employees, having total assets exceeding R1 trillion and making substantial donations to arts, culture, sport and education, the costs of a headset and OT report would have been infinitesimal.

[138]   Insofar as her frequent absence posed an unjustifiable hardship, the bank led no evidence about why the hardship was unjustified. The bank proved the number of days that Ferreira was absent and that this had resulted in a loss of productivity, which is to be expected. Why it became unjustifiable hardship to keep her longer, the bank did not say. For any financially sound institution, proving unjustifiable hardship is hard. Hence, the push for reasonable accommodation is ber and is a better option for addressing the mutual interests of the parties.

Procedure

[147]   The bank inverted the four-stage process by first adapting her duties and offering her alternative work as a switchboard operator instead of instating her in a position commensurate to her training, experience and intellectual ability as the primary means of accommodating her. Ferreira's dismissal was therefore procedurally unfair. When an employer follows a flawed procedure to dismiss a disabled employee, it is impossible to divorce discrimination from the duty to accommodate. The court agrees with the arbitrator that the procedure was inextricably connected to the dismissal which was substantively unfair.

The award

[148]   Notwithstanding the court's difference of opinion with the arbitrator on the bank's conduct, the award is sustainable. On the material facts that the arbitrator found proved, his award is reasonable.