EWN v Pharmaco Distribution (Pty) Ltd (JS654/10) [2015] ZALCJHB 329; (2016) 37 ILJ 449 (LC) (22 September 2015)

EWN v Pharmaco Distribution (Pty) Ltd (JS654/10) [2015] ZALCJHB 329; (2016) 37 ILJ 449 (LC) (22 September 2015)

The court found that the instruction to the applicant to undergo a psychiatric assessment was not legally permissible under section 7 of the Employment Equity Act, as the respondent failed to establish any of the statutory exceptions. The contractual provision relied upon was therefore unlawful and unenforceable. The evidence showed that the applicant was singled out for medical testing solely because of her bipolar disorder, despite her satisfactory work performance and absence of any objective basis for doubting her fitness. The predominant reason for her dismissal was her refusal, as a person with a bipolar condition, to undergo a psychiatric examination, which she would not have been...

Citation
[2015] ZALCJHB 329
Parties
Applicant: EWN; Respondent: Pharmaco Distribution (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2015
Case Number
JS654/10
Procedural Posture
Civil Trial / Judgment
Outcome
The applicant's dismissal was declared automatically unfair and constituted unfair discrimination. The contractual provision requiring medical testing was declared void.
Judges
Lagrange
Legal Topics
Automatically Unfair Dismissal, Unfair Discrimination, Psychiatric Assessment, Employment Equity Act, Contractual Medical Testing
Labour Law Civil Procedure Automatically Unfair Dismissal Unfair Discrimination Psychiatric Assessment Employment Equity Act Contractual Medical Testing

Case Brief

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Parties

EWN

Applicant

Pharmaco Distribution (Pty) Ltd

Respondent

Procedural Posture

Civil Trial / Judgment

Legal Issues

  1. 1 Whether the contractual provision requiring the applicant to undergo medical testing is enforceable or void.
  2. 2 Whether the applicant's dismissal for failing to submit to a medical examination was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act.
  3. 3 Whether the dismissal was substantively or procedurally unfair if not automatically unfair.

Ratio Decidendi

The court found that the instruction to the applicant to undergo a psychiatric assessment was not legally permissible under section 7 of the Employment Equity Act, as the respondent failed to establish any of the statutory exceptions. The contractual provision relied upon was therefore unlawful and unenforceable. The evidence showed that the applicant was singled out for medical testing solely because of her bipolar disorder, despite her satisfactory work performance and absence of any objective basis for doubting her fitness. The predominant reason for her dismissal was her refusal, as a person with a bipolar condition, to undergo a psychiatric examination, which she would not have been...

Court Disposition

The applicant's dismissal was declared automatically unfair and constituted unfair discrimination. The contractual provision requiring medical testing was declared void.

Orders

  • Clause 17.3 of the applicant's contract of employment is declared null and void for breach of section 7 of the Employment Equity Act.
  • The respondent must pay the applicant R15,000 as general damages for unfair discrimination under section 6 of the Employment Equity Act.