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Fired for refusing a medical test

By Aadil Patel, Director, National Practice Head and Samantha Bonato, Associate, Employment, Cliffe Dekker Hofmeyr

 

The Labour Court case of Pharmaco Distributors (PTY) LTD v Weideman LAC (2017) ZALCJHB 258 was the topic of discussion recently with emphasis placed on the role that the employment contract played in the matter. The case was recently taken to the Labour Appeal Court which further scrutinised the relevant issues. First, let us recap what the case involved.

 

This matter involved an employee suffering from bipolar disorder who refused to undergo medical testing despite her contract of employment containing a clause which provided that she had to undergo medical testing whenever the employer deemed it to be necessary. The employer ultimately dismissed the employee for disobeying this instruction and the Labour Court found that her dismissal was automatically unfair.

 

The employer then took this judgment on appeal to the Labour Appeal Court. The Labour Appeal Court ultimately confirmed the decision of the Labour Court. It emphasised the below important principles.

 

Firstly, it held that the clause in the employee’s contract of employment relied on by the employer is patently offensive and invasive of the privacy rights of the employee. It held that it was plainly inconsistent with s7(1) of the Employment Equity Act, No 55 of 1998 (EEA), which prohibits medical testing of employees unless certain conditions are met. The employer’s argument that “the testing was justified given that the [employee] had consented to undergoing a medical test…” therefore had to fail as consent was not one of the exceptions contained in s7(1) of the EEA.

 

The Labour Appeal Court also held that there was a clear manifestation of discrimination against the employee because of her bipolar disorder. This was because regardless of her exceptional performance reviews, the mere fact that she suffered from a bipolar disorder was a matter of such concern to the employer that she was dismissed when she refused to undergo the medical testing. Therefore, there was a direct causal connection between the employee’s disorder and the dismissal.

 

What the Labour Appeal Court importantly added to the Labour Court’s judgment is that no matter what the reasoning behind a request by an employer for an employee to undergo medical tests, such request must be in strict compliance with s7 of the EEA. The Labour Appeal Court dismissed the employer’s appeal in this case and essentially held that neither the argument of consent in terms of the contract, nor operational requirements for the job would stand as a legitimate defence in such circumstances. Therefore, as stated above, the ‘motive’ is irrelevant. 

 

For more information please contact Aadil Patel at  or Samantha Bonato at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

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