A company which said its employee was “cosmetically unacceptable” to return to work following a suicide attempt has been found to have unfairly discriminated against the employee as a result of his disability.
It was ordered by the Labour Court to pay the former employee R1.5-million in damages and compensation.
“This matter was borne out of a tragic event‚ which‚ instead of being resolved on the basis of compassion and good sense‚ escalated into unfortunate litigation on the basis of discrimination‚” Acting Judge of the Labour Court Sean Snyman‚ who heard the unfair discrimination application last month‚ said in his judgment passed last week.
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Johannes Diedrick Smith had been working as a general manager (nonfood) at The Kit Kat Group‚ a wholesaler and retailer of consumer goods since 2005‚ and reported directly to the owners‚ the Gani family
In September 2013‚ Smith attempted suicide on September 13 2013 by placing a gun to his mouth and pulling the trigger.
The suicide attempt was unsuccessful. Smith was hospitalised and underwent some facial reconstruction surgery. He suffered no other physical injuries except to his face.
The judge said when Smith testified in court last month‚ there was disfigurement to his face but this was not of such a nature as to instil a sense of involuntary shock by a casual observer.
Snyman said Smith spoke slowly‚ which was laboured as a result of the damage to his mouth‚ but the judge had little difficulty in understanding him
A month after the attempted suicide‚ chairman of the company Abdul Gani said Smith was a valued employee and could come to work as soon as he had recovered.
By the beginning of February 2014‚ Smith had recovered enough and was ready to return to work.
However‚ joint CEO of The Kit Kat Group Riaz Gani said although Smith was physically recovered and was mentally ready to work‚ he was “not facially acceptable” and his presence would remind employees of the unfortunate event.
In March 2014‚ Abdul Gani also said Smith was “cosmetically unacceptable” to come to work and suggested that Smith pursue a disability claim with the provident fund and also recommended how to complete the claim to overcome the benefit exclusion of self-inflicted disability in the fund.
The matter came to a head in a meeting in April 2014‚ when the employer said it considered that due to the “cosmetic circumstances” and the fact that one could only understand 70 to 80% of what he was saying‚ Smith could not return to work.
Smith then pursued an unfair discrimination claim in the Labour Court.
Snyman said if The Kit Kat Group believed that Smith was substantially impaired from doing his job because he was “cosmetically unacceptable” and had a speech impediment‚ it needed to deal with this by way of incapacity proceedings.
This The Kit Kat Group did not do‚ the judge said.
Snyman said it remained a complete mystery to him why The Kit Kat Group would describe Smith as “cosmetically unacceptable”.
“I‚ in any event‚ find such an approach to be appalling. To in effect exclude (Smith) from working because how he looked‚ especially considering he was not employed as a runway model for a fashion house‚ is simply inexplicable.”
— TMG Digital
Labour Court judge ‘appalled’ that employee was deemed ‘cosmetically unacceptable’
A company which said its employee was “cosmetically unacceptable” to return to work following a suicide attempt has been found to have unfairly discriminated against the employee as a result of his disability.
It was ordered by the Labour Court to pay the former employee R1.5-million in damages and compensation.
“This matter was borne out of a tragic event‚ which‚ instead of being resolved on the basis of compassion and good sense‚ escalated into unfortunate litigation on the basis of discrimination‚” Acting Judge of the Labour Court Sean Snyman‚ who heard the unfair discrimination application last month‚ said in his judgment passed last week.
'Unfair hiring' halts road construction project
Johannes Diedrick Smith had been working as a general manager (nonfood) at The Kit Kat Group‚ a wholesaler and retailer of consumer goods since 2005‚ and reported directly to the owners‚ the Gani family
In September 2013‚ Smith attempted suicide on September 13 2013 by placing a gun to his mouth and pulling the trigger.
The suicide attempt was unsuccessful. Smith was hospitalised and underwent some facial reconstruction surgery. He suffered no other physical injuries except to his face.
The judge said when Smith testified in court last month‚ there was disfigurement to his face but this was not of such a nature as to instil a sense of involuntary shock by a casual observer.
Snyman said Smith spoke slowly‚ which was laboured as a result of the damage to his mouth‚ but the judge had little difficulty in understanding him
A month after the attempted suicide‚ chairman of the company Abdul Gani said Smith was a valued employee and could come to work as soon as he had recovered.
By the beginning of February 2014‚ Smith had recovered enough and was ready to return to work.
However‚ joint CEO of The Kit Kat Group Riaz Gani said although Smith was physically recovered and was mentally ready to work‚ he was “not facially acceptable” and his presence would remind employees of the unfortunate event.
In March 2014‚ Abdul Gani also said Smith was “cosmetically unacceptable” to come to work and suggested that Smith pursue a disability claim with the provident fund and also recommended how to complete the claim to overcome the benefit exclusion of self-inflicted disability in the fund.
The matter came to a head in a meeting in April 2014‚ when the employer said it considered that due to the “cosmetic circumstances” and the fact that one could only understand 70 to 80% of what he was saying‚ Smith could not return to work.
Smith then pursued an unfair discrimination claim in the Labour Court.
Snyman said if The Kit Kat Group believed that Smith was substantially impaired from doing his job because he was “cosmetically unacceptable” and had a speech impediment‚ it needed to deal with this by way of incapacity proceedings.
This The Kit Kat Group did not do‚ the judge said.
Snyman said it remained a complete mystery to him why The Kit Kat Group would describe Smith as “cosmetically unacceptable”.
“I‚ in any event‚ find such an approach to be appalling. To in effect exclude (Smith) from working because how he looked‚ especially considering he was not employed as a runway model for a fashion house‚ is simply inexplicable.”
— TMG Digital
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