Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016)

Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016)

The court found that the applicant suffered a permanent physical disability as defined by the Employment Equity Act, resulting from his attempted suicide. The respondent's refusal to allow the applicant to return to work, based on cosmetic appearance and speech impediment, constituted direct discrimination on the basis of disability. The respondent failed to conduct any proper incapacity investigation or to reasonably accommodate the applicant, as required by law. The respondent's conduct amounted to a repudiation and effective termination of the employment contract, without due process. The discrimination was found to be unfair, as the respondent did not discharge the onus of proving...

Citation
[2016] ZALCJHB 362
Parties
Applicant: Johannes Diedrick Smith; Respondent: Kit Kat Group (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2016
Case Number
JS787/14
Procedural Posture
Discrimination Application / Trial Judgment
Outcome
The applicant succeeded. The respondent was found to have unfairly discriminated against the applicant on the basis of disability and was ordered to pay damages, compensation, facilitate provident fund withdrawal, and costs.
Judges
S Snyman
Legal Topics
Employment Equity Act, Unfair Discrimination, Disability Accommodation, Dismissal, Compensation and Damages
Labour Law Employment Equity Act Unfair Discrimination Disability Accommodation Dismissal Compensation and Damages

Case Brief

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Parties

Johannes Diedrick Smith

Applicant

Kit Kat Group (Pty) Ltd

Respondent

Procedural Posture

Discrimination Application / Trial Judgment

Legal Issues

  1. 1 Whether the respondent unfairly discriminated against the applicant on the basis of disability.
  2. 2 Whether the respondent's refusal to allow the applicant to return to work and cessation of salary constituted unfair discrimination.
  3. 3 Whether the respondent discharged its duty to reasonably accommodate the applicant's disability.

Ratio Decidendi

The court found that the applicant suffered a permanent physical disability as defined by the Employment Equity Act, resulting from his attempted suicide. The respondent's refusal to allow the applicant to return to work, based on cosmetic appearance and speech impediment, constituted direct discrimination on the basis of disability. The respondent failed to conduct any proper incapacity investigation or to reasonably accommodate the applicant, as required by law. The respondent's conduct amounted to a repudiation and effective termination of the employment contract, without due process. The discrimination was found to be unfair, as the respondent did not discharge the onus of proving...

Court Disposition

The applicant succeeded. The respondent was found to have unfairly discriminated against the applicant on the basis of disability and was ordered to pay damages, compensation, facilitate provident fund withdrawal, and costs.

Orders

  • The applicant was unfairly discriminated against by the respondent based on his disabilities.
  • The respondent is ordered to pay damages and compensation to the applicant in the amount of R1,540,199.40 within 10 days of judgment.