The question that arose for decision in the case of EWN v Pharmaco Distribution (Pty) Ltd 2016 (37) ILJ 449 (LC) was whether an employer could compel an employee to undergo medical testing, and if so, on what grounds. In this case, the court had to decide specifically whether it was fair to dismiss an employee who had refused to submit to a psychiatric examination even though her contract of employment provided that she would submit to such medical examinations at the cost of the employer, whenever her employer deemed it necessary. The employer argued that this was a dismissable breach of contract on her part.
The applicant was permanently employed as a pharmaceutical sales representative in terms of a written contract of employment in June 2009. Prior to that she had been employed on a fixed term contract.
In December 2008 the applicant’s performance was rated as exceptionally good in all areas. Shortly thereafter, she started querying the manner in which her employer had calculated the amount of commission paid to her and complained about the delays in paying her. She lodged a formal grievance in this regard. She was then given a notice to attend a disciplinary inquiry to deal with six charges against her, all of which related to interactions she had had with various staff members in her attempts to resolve her grievances. She was found guilty of some of the charges, and was issued with a final written warning, which she appealed against. Shortly thereafter, she was suspended from work and told to present herself for medical examination by a psychiatrist to determine whether or not she was fit to work. She was warned that failure to attend the medical examination would constitute a serious offence.
The employee refused to submit to the medical examination and was duly charged and eventually dismissed for this reason.
The employee had previously been diagnosed with bipolar disorder, which her employer was aware of. She was undergoing regular therapy and being medicated for her condition and her psychologist testified that her condition did not affect her ability to function effectively in her work environment.
The employee contended that the instruction for her to be examined by a psychiatrist was unlawful and constituted an act of unfair discrimination based on disability which amounted to a form of harassment. The employer argued that the instruction was reasonable and lawful in terms of her contract of employment, and contended that it was necessary to determine if she was ‘fit to work’.
Section 7 of the Employment Equity Act 55 of 1998 prohibits the medical testing of employees, unless legislation permits or requires the testing or where the testing is ‘justifiable’. The court observed that s 7 did not provide that testing would be permissible where the employee consents to such testing. The consent in the employee’s contract of employment was not therefore determinative of the issue. There was no relevant legislation either requiring or permitting the medical examination in this case. The court therefore had to determine whether the testing was ‘justifiable.’ In terms of s 7(1)(b) medical testing is only permitted if it is justifiable in the light of –
- medical facts;
- employment conditions;
- social policy;
- the fair distribution of employee benefits; or
- the inherent requirements of a job.
The court rejected the respondent’s argument that the employee’s ‘employment conditions’ justified the medical examination because it needed to be sure she was mentally stable and able to cope with the demands of the job. The court said that the job was not so stressful, and it accepted that the employee’s outburst was triggered by a dispute over an important aspect of her remuneration and had nothing to do with a general inability to cope or perform at the required standard. The court also dismissed the argument that it was an inherent requirement of the job to be medically certified fit for work. The employer had not required this certification when she started work.
Accordingly, the court found that because the instruction to submit to a medical examination was not justifiable under s 7 of the Employment Equity Act, the term of the contract requiring her to do so was unlawful and unenforceable.
In addition, the court concluded that the dismissal was effectively because of her bipolar status, not for any other objectively justifiable reason, since she would not have been instructed to see the psychiatrist had she not been bipolar. It was therefore also an act of unfair discrimination in terms of s 6 of the Employment Equity Act. Her dismissal was thus found to be automatically unfair. The employer was ordered to pay the employee R15 000.00 as general damages for the unfair discrimination, and R 222 000.00 as compensation for her automatically unfair dismissal. This was the equivalent of 12 months remuneration. (The maximum compensation payable for an automatically unfair dismissal is 24 months remuneration).
Nicci Whitear-Nel (BA LLB)
Senior Lecturer – School of Law, University of KwaZulu-Natal