The fired firefighter – The ConCourt weighs in Quarter 2 2022

By COURTNEY WINGFIELD AND NEIL COETZER, Published in Employment Law

Unfair discrimination of people with disabilities should be dealt with decisively by our Courts. However, a delicate balance should be struck when dealing with these issues, particularly in the employment context where human dignity of the employee and the operational requirements of the employer are the issues in play.

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The Constitutional Court recently tackled these issues in Damons v City of Cape Town [2022] ZACC 13. Mr Adam Damons was employed as a firefighter by the City of Cape Town during 2001. He progressed in his career until he was injured during a 'fire drill' which took place without any adherence to the required safety measures. As a result of this incident, Damons suffers from disabilities.

In 2012, the City initiated an incapacity enquiry to determine whether it could reasonably accommodate Damons in accordance with the Code of Good Practice on Employment of Persons with Disabilities. The City found that it could accommodate him within its Fire and Life Safety section, where he would perform administrative and educational work. By agreement, Damons retained his designation as a firefighter and the remuneration associated therewith.

Damons then applied to be promoted to the position of senior firefighter. In this regard, he requested that the City relax the physical fitness requirement for that position. This requirement was set out in the City's Fire and Rescue Advancement Policy. The City refused to do this as it contended that it had already reasonably accommodated Damons and that he did not meet the inherent requirements for the position of a senior firefighter.

Damons then brought an unfair discrimination claim against the City. The Labour Court found that the City's decision, by applying the Policy to Damons in a way that prevented him from advancing due to his disability, amounted to unfair discrimination in terms of s6(1) of the Employment Equity Act 55 of 1998, as amended. The Labour Court directed the City to reconsider Damons' advancement application within 15 days of the Order being handed down.

The City then appealed to the Labour Appeal Court (the LAC). The LAC overturned the Labour Court's judgment and found that it was not possible for Damons to perform the essential functions of a senior firefighter. The LAC found that the City had not unfairly discriminated against Damons. Damons appealed to the Constitutional Court.

The minority judgment of the Constitutional Court, penned by Pillay AJ, displayed substantial empathy for Damons' situation and found that the City had indeed discriminated against Damons, even though he had failed to plead certain essential averments. The majority judgment penned by Majiedt, in contrast, cautioned against determining matters ad misericordiam (appeal of pity). The majority instead emphasised the importance of pleadings in litigation.

On this basis, the majority found that Damons had not pleaded a case to be advanced to any position other than a senior firefighter. The majority agreed with the Labour Court, LAC and minority judgment that the inherent requirements of a job was a complete defence to a claim of unfair discrimination.

In contrast to the minority, the majority adopted a more restrictive interpretation to the concept of reasonable accommodation. The majority found that reasonable accommodation envisages an attempt to place people on equal footing with others. The obligation thus only extends insofar as it makes it possible for the employee to fulfil the inherent requirements of the job.

In its closing remarks, the majority of the Constitutional Court found that any other interpretation of the concept of reasonable accommodation would create an untenable situation. This would be to require employers to accommodate employees who cannot perform the inherent requirements of the job or to force employers to create new positions to accommodate employees who cannot meet the inherent requirements of the job. The disastrous operational consequences of this for an employer are obvious.

This judgment thus sends two notes of caution. One is that matters should be considered on the objective facts. Empathy must be considered but cannot be determinative of matters. Secondly, pleadings must be drafted with precision. If Damons had included a clause stating that he should be promoted into "any position" rather than just to the position of senior firefighter, his claim may well have had a different outcome. Accordingly, litigants should take specialised legal advice when disputes arise, as these issues cannot be rectified when a matter is at an advanced stage.

Wingfield is a Senior Associate and Coetzer a Partner with CowanHarper-Madikizela.