General Industries Workers Union of South Africa and Another v African Explosives Limited (J2311/14) [2022] ZALCJHB 234; (2022) 43 ILJ 2496 (LC) (18 August 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J2311/14

In the matter between:

GENERAL INDUSTRIES WORKERS UNION

OF SOUTH AFRICA

First Applicant

MANDLA TSHAYA

Second Applicant

and

AFRICAN EXPLOSIVES LIMITED

Respondent

Heard: 2 June 2022

Delivered: 18 August 2022

(This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 18 August 2022)

Summary: Unfair discrimination – section 6(1) of EEA – effective communication is an inherent requirement of the Technologist position – employee with severe speech impediment – no prospect of being reasonably accommodated.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] In this action, the first applicant (GIWUSA), acting on behalf of the second applicant (Mr Tshaya), is challenging the decision of the respondent (AEL) not to shortlist Mr Tshaya during the recruitment

for the Technologist position. The crisp issue for determination is whether Mr Tshaya met all the necessary requirements to be

shortlisted, interviewed and possibly appointed to the impugned position.

[2] The trial sat on 2 and 3 June 2022. At the end of the trial, the parties were directed to file their closing heads of argument. AEL duly filed its heads of argument on 10 June 2022. GIWUSA, on other hand, only filed its heads of argument on 26 July 2022, more than a month after receiving the AEL’s heads of argument. There was no attempt to seek indulgence for the late filing of the GIWUSA’s heads of argument. GIWUSA’s ineptitude is absolutely

unacceptable as this Court as well as AEL were seriously prejudiced by its failure to timeously file its heads of argument. The is no excuse for the remiss conduct on the part of GIWUSA’s attorneys of record. I will revert to this issue when I deal with costs.

Factual Background

[3] There is not much controversy when it comes to the factual matrix in this matter. Mr Tshaya has been in the employ of AEL since 2006 and is currently holding the position of an Operator at Grade 27. Over

the years, Mr Tshaya had unsuccessfully applied for various positions. In present the matter, he is challenging AEL’s failure to shortlist and appoint him to the position of a Technologist in February 2013.

[4] Mr Tshaya testified that he was informed by a lady in the Human Resources Department (HR) that his name had been removed from the shortlist because of his speech impediment. Yet, in his view, he had met the requirements for the position and had the necessary qualifications. During his cross-examination, he was adamant that the advertisement for the position did not mention that the incumbent would be required to communicate with external stakeholders.

[5] It is common cause that Mr Tshaya challenged the decision not to shortlist him internally. Several meetings were held between GIWUSA’s shop-stewards and AEL’s HR over Mr Tshaya’s grievance. Mr Tshaya conceded that he sat in most of those meetings and took no issue with the contents of the minutes of those meetings. What is apparent from the minutes of these meetings is that AEL persistently explained that Mr Tshaya did not qualify for the Technologist

position because of his speech impediment. In fact, it is not in dispute that Mr Tshaya has a serious speech impediment, a fact that was confirmed by the Speech Therapist, Ms Aisha Casoojee (Ms Casoojee) who had assessed Mr Tshaya at the instance of AEL.

[6] Nonetheless, in an attempt to accommodate Mr Tshaya, he was promoted to the position of Lead Operator, a move that was born out of the grievance meeting between GIWUSA and AEL that was held on 18 August

2016. This appointment was duly accepted by Mr Tshaya.

[7] Later, Mr Tshaya was not happy with his promotion and intimated that the Lead Operator position required him to operate in an area that was not approved by his former doctor because he had to use a respirator and/or mask. Yet, he conceded during his cross-examination that the challenges pertaining to him wearing a respirator or a mask

were discussed in a meeting of 17 August 2017 and subsequently, a mask was specifically created for him to accommodate his physical

impediment. Tellingly, he also conceded that the latest report from AEL’s doctor recorded that his headaches were not caused by chemicals but rather were tension related.

[8] Mr Kealeboha Dibotelo (Mr Dibotelo), a former shop-steward who had represented Mr Tshaya during the discussions with HR, testified that, had Mr Tshaya’s name not been removed from the shortlist, this litigation would have been averted. Mr Tshaya qualified to be interviewed and appointed because communication was not a requirement for the Technologist position. He was unyielding in his testimony that, even if communication was a requirement, it should not have been obstacle since Mr Tshaya had been in the employ of AEL for many years and people were able to communicate with him.

[9] AEL’s main defence is that Mr Tshaya was not shortlisted for the position of Technologist because effective communication was one of the inherent requirements of that position as the incumbent had to communicate with both internal and external stakeholders. Mr Hendrik Cornelius Bezuidenhout (Mr Bezuidenhout) testified that Technologists assist in the development of products and the sustainability of current products manufactured by AEL. Mr Bezuidenhout was resolute that the ability to communicate effectively, verbally and in writing, was very important as the Technologists normally communicate with suppliers regarding the requirements and specifications of their products; the plant employees in order to understand their requirements from a manufacturing perspective; and the front end users in terms of where the product is applied so that it can be used safely. The products that are developed by AEL include explosives that are used by the mining industry to break ground. The mining industry clients need to understand composition and function of each product and whether they meet their specifications. This evidence was not controverted.

Legal principles and application

[10] Section 6(1) of the Employment Equity Act[1] (EEA) provides:

‘No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’

[11] While section 6(2) of EEA provides that:

‘It is not unfair discrimination to –

(a) take affirmative action measures consistent with the purpose of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.’

[12] In TDF Network Africa (Pty) Ltd v Faris,[2] the Labour Appeal Court (LAC) referred to with approval the judgment of City of Cape Town v South African Municipal Workers Union obo Damons[3] (City of Cape Town), where the Court instructively expounded the test applicable when determining whether the requirement is inherent in the performance of job as follows:

‘[37] The test for whether a requirement is inherent or inescapable in the performance of the job is essentially a proportionality enquiry. Considering the exceptional nature of the defence, the requirement must be strictly construed. A mere legitimate commercial rationale will not be enough. In general, the requirement must be rationally connected to the performance of the job. This means that the requirement should have been adopted in a genuine and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose and must be reasonably necessary to the accomplishment of that purpose.

[38] However, even if that is shown, the enquiry does not end there. In addition, the employer bears the burden of proving that it is impossible to accommodate the individual employee without imposing undue hardship or insurmountable operational difficulty. In SA Clothing and Textile Workers Union and others v Berg River Textiles – A Division of Seardel Group Trading (Pty)[4], the Labour Court correctly and succinctly put it as follows:

“In particular, the employer must establish that it has taken reasonable steps to accommodate the employee’s religious convictions. Ultimately

the principle of proportionality must be applied. Thus an employer may not insist on the employee obeying a workplace rule where that refusal would have little or no consequence to the business.”’ (Emphasis added)

[13] In City of Cape Town[5], the LAC was equally confronted with failure to promote an employee due to disability and made the following observations:

‘[15] To the extent that there is a differentiation between Damons and active fire-fighters, who are considered for promotion, this is justified both by the rational requirements contained in the Policy and by the inherent requirements for the position of a Senior Fire-fighter. In this connection, although again in a different context, the following dictum of this Court in South African Airways (Pty) Ltd v GJJVV [2014] 8 BLLR 748 (LAC) at paragraph 54 is relevant:

“The contention on behalf of the appellant that the age of a pilot was an inherent requirement of the work of a pilot was not convincing at all. It is so that if the appellant had established as a fact that there first respondent [sic] had been discriminated against on the basis of his age, because age was an inherent requirement of the job of a pilot it might well have discharged its onus, because in terms of s 6(2)(b) of the EEA it is not unfair discrimination to ‘distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.’ However, in this case, there was no evidence by the appellant that age was an inherent requirement of the job of a pilot …”

[16] Significantly, item 6.5.1(b) of the Code of Good Practice and Employment of Persons with Disabilities (Government Gazette 9 November 2015) provides that “employers should reasonably accommodate the needs of persons with disabilities. The aim of the accommodation is to reduce the impact of the impairment of the person’s capacity to fulfil the essential functions of a job”.

[17] Item 7.5.1(b) of this Code then provides “that an employer may not retain employees who become disabled, on less favourable terms and conditions than employees doing the same work, for reasons connected with the disability.”

[18] These provisions indicate that a disabled employee cannot be discriminated against other employees who do the same work and, to that specific extent that the doctrine of reasonable accommodation applies. A policy must be designed to reduce the impact of the impairment of the person’s capacity to fill the essential functions of the job. But in this case, it is not possible for Damons to perform the essential requirements of an active fire-fighter nor could it possibly be in the public interest to have fire-fighters who are not capable of dealing with the outbreak of fires which, in the area of jurisdiction of the appellant, are notoriously frequent.’ (Emphasis added)

[14] In the present matter, it is clear from the internal vacancy advertisement that effective communication was one of the requisite competencies for the Technologist position. Even though Mr Tshaya denied that he was expected to communicate with external stakeholders, on a quick glance of the required functional outputs per the advertisement, it is apparent that the incumbent was required, inter alia, to give advice and assistance to others in order to ensure policies and government procedures. Mr Bezuidenhout also explained in detail what the Technologist position entails and that communication with external stakeholders was pivotal. This evidence was not seriously challenged. Nothing much turns on the evidence of Mr Tshaya that for the brief period he had worked with Technologists, as part of his exposure, he was not required to communicate with external stakeholders. He was not bound by the job requirements and expected outputs in the same manner as permanent incumbents.

[15] What is true and unfortunate though is that Mr Tshaya has a serious facial deformity which conspicuously affects his speech. The Speech Therapist, Ms Casoojee, who had assessed Mr Tshaya found, inter alia, that he could not formulate sentence structures containing subordinate conjunction; his speech function was severely affected and thus he required an intensive and ongoing speech-language intervention; he presented poor articulation of speech; and overall

he had a decreased speech ability, intelligibility and articulateness. This expert report was never controverted.

[16] Then again, over the years, AEL through constant discussions with GIWUSA shop-stewards, did what was reasonably possible to accommodate Mr Tshaya and promoted him to the position of Lead Operator, which he gladly accepted but for a brief moment.

Conclusion

[17] In all the circumstances, I am satisfied that due to the serious speech impediment, Mr Tshaya was not in a position to perform the essential requirements of the position of a Technologist, which is to communicate effectively with all stakeholders and particularly,

the external stakeholders, who constitute suppliers and end users of the explosive products that are manufactured by AEL. Accordingly, the applicants failed to make out a case to sustain a claim of unfair discrimination in terms of section 6(1) of the EEA.

Costs

[18] In my view, GIWUSA’s unexplained delay and flagrant disregard of the directive to file heads of argument is deplorable. Nonetheless, I am not prepared to visit it with costs as it would offend the requirements of law and fairness.

[19] In the circumstances, I make the following order:

Order

1. The applicants’ claim is dismissed.

2. There is no order as to costs.

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

Applicants:

M Bayi from Bayi Attorneys

Respondent:

D Woodhouse from Mervyn Taback Inc. t/a Andersen

[1] Act 55 of 1998, as amended.

[2] [2019] 2 BLLR 127 (LAC) (TDF Networks) at paras [37] - [38].

[3] [2020] 9 BLLR 875 (LAC) at paras [15] - [18].

[4] (2012) 33 ILJ 972 (LC) at para [38.6].

[5] City of Cape Town supra fn 3.