Cape Town- The Labour Labour Court has refused to remove the constitutionally aligned fundamental rights claims in a disabled woman’s court battle for general damages over alleged discrimination in her ongoing labour case against the Cape Town International Convention Centre (CTICC).
In October 2021 Makgosi Letimile instituted Labour Court proceedings against the CTICC for alleged discrimination she experienced while in its employ.
She did this on the grounds of her disability and/or the intersectional grounds of her disability, race and gender; her alleged unfair dismissal for operational reasons; and the alleged violation of her constitutionally enshrined fundamental human rights to dignity, bodily and psychological integrity, freedom of expression and freedom of association.
Attorney Tzvi Brivik of Malcolm Lyons & Brivik Inc said Letimile was hired as part of a targeted recruitment of disabled persons initiated by the CTICC in 2019.
She was allegedly promised that her disability would be accommodated and that she would be provided training to support her difficult re-entry into the job-market after only recently having become permanently disabled.
Once employed, the CTICC’s promises of a disability-friendly workplace allegedly did not materialise as she was not provided training and appropriate equipment, and they allegedly failed to respond to her requests for disability awareness and sensitivity training in the workplace, among others.
Brivik said they also took issue with Letimile’s involvement in advocacy relating to black women’s health and disabled women’s health, “going so far as to demand that she provide her personal medical records as well as other proof of information published by her in her private capacity regarding the use of vibrators, traditionally thought of as sex toys, in assisting with the management and rehabilitation of disability-related incontinence; as well as with her identifying with sex workers because she had once been paid for evaluating such devices.”
In April 2021, Letimile was dismissed.
The interim judgment handed down by the Labour Court last week relates primarily to an exception brought by the CTICC in which it argued that those parts of Letimile’s claim that rely directly on the Constitution to found claims for general damages do not disclose a valid cause of action and should be removed from her papers prior to the main trial being heard.
Judge Rabkin-Naicker ruled: “In my view the real issue at the heart of this exception is the question as to whether the reliance on various constitutional rights apart from that to equality and fair labour practices in this dispute, can give rise to a discreet general damages claim, over and above the damages claim allowed for under the Employment Equity Act (EEA).
“In other words, the trial court will have to consider, if it finds that the applicant’s fundamental rights were infringed as pleaded, whether this would in effect impact on the damages awarded under the EEA, or give rise, in addition, to a separate and additional award of general damages as sought by the applicant in her pleadings.
“This will be argued at the end of the trial and decided after that point. The exception must be dismissed.”
Of the outcome Brivik said that the case was important not just for Letimile but for disabled persons generally as it seeks to clarify as well as enhance the rights of disabled persons in the workplace – both during employment and upon termination thereof.
“It should not be that considerations of employment equity feature strongly during hiring processes but fall by the wayside during the course of a disabled person’s employment or when retrenchment processes are initiated. They should remain relevant throughout.
“It is hoped that the matter will now proceed to trial without further unnecessary delays,” said Brivik.
The CTICC said: “Pleadings have not yet closed in the matter, which remains sub judice.”
Meanwhile, Bonteheuwel Disabled Group’s David Pillay said cases of discrimination against people with disabilities were not surprising.
“People with disabilities face a lot of challenges in the workplace, not only from employers but even employees,” he said.Of the outcome Brivik said that the case was important not just for Letimile but for disabled persons generally as it seeks to clarify as well as enhance the rights of disabled persons in the workplace – both during employment and upon termination thereof.
“It should not be that considerations of employment equity feature strongly during hiring processes but fall by the wayside during the course of a disabled person’s employment or when retrenchment processes are initiated.
They should remain relevant throughout.
“It is hoped that the matter will now proceed to trial without further unnecessary delays,” said Brivik.
The CTICC said: “Pleadings have not yet closed in the matter, which remains sub judice.”
Meanwhile, Bonteheuwel Disabled Group’s David Pillay said, “People with disabilities face a lot of challenges in the workplace, not only from employers but even employees,” he said.
Cape Times