“Inherent requirements of the job” and “reasonable accommodation” are important concepts when considering the distinction between disability and incapacity in the workplace. In this reported judgment of the Labour Court (Gugwini v National Consumer Commissioner (2023) 44 ILJ 2237 (LC)) the employee, a senior researcher, was declared legally blind. The National Consumer Commissioner’s (NCC) Health Risk Manager confirmed after an assessment that the employee could no longer fulfil the essential functions and duties of their employment as senior researcher which required good vision. The NCC offered a position in its call centre which the employee declined, regarding this offer as dehumanising, inconsiderate and discriminatory. The NCC issued a letter of termination to the employee for ill-health retirement. The NCC set out its reasons therefor, being that the employee’s experience was not in line with the inherent requirements for the alternative position available of ICT manager, and that the employee refused to consider alternative work in a lower position (that in the call centre).

The Labour Court was tasked with determining, first, whether the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act, 66 of 1995 (the LRA), and second, whether the employee had been unfairly discriminated against in terms of section 6 of the Employment Equity Act, 55 of 1998 (the EEA).

In its analysis, the Labour Court referred to the Constitutional Court decision of Adams Damon v City of Cape Town [2022] 7 BLLR 585 (CC)  where it was held that an inherent requirement of the job is usually a complete defence to a claim for unfair discrimination. Once the requirement is found to be inherent, then it is not unfair for an employer to insist on that requirement being met. Here the employer is protected from a claim of discrimination and it is not compelled to waive that requirement for a person with a disability. The Constitutional Court held further that the obligation to reasonably accommodate will apply only where that reasonable accommodation will make it possible for an employee to fulfil the inherent requirements of the job.

The Labour Court found that the NCC did not discriminate against the employee on the ground of their disability, as provided in section 6(1) of the EEA, by not accommodating the employee in positions where the ability to read and write were inherent and core requirements. No amount of reasonable accommodation would have enabled the employee to meet the inherent requirements of reading and writing.

Further, in determining whether the dismissal was automatically unfair, the Labour Court referred to Standard Bank of SA v Commission for Conciliation, Mediation & Arbitration & others (2008) 29 ILJ 1239 (LC) which sets out the important distinction between disability and incapacity as follows: “An employee is incapacitated if the employer cannot accommodate [them] or if [they] refuse an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.” Where the main or dominant reason for the employee’s dismissal is their disability as opposed to incapacity, such dismissal is automatically unfair. In the present matter, the Labour Court found that the more probable reason for the employee’s dismissal was the employee’s incapacity and inability to perform the job for which they were engaged and the NCC’s inability to accommodate the employee in another suitable position. The NCC had a legitimate reason for dismissing the employee and the dominant reason for the dismissal was incapacity, and not the fact that the employee was disabled.