FROM the very first paragraph it’s clear this is no ordinary case. The opening remarks of acting labour court judge Sean Snyman, sitting in Johannesburg, were these: “This matter was born 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. I am still surprised how often employers can be short-sighted (when) it comes to (the) personal circumstances of their employees.”
The judge then compared the employment relationship in the modern constitutional era “to a marriage”. He said employers had to ask themselves how they would treat their spouse in the case of a personal tragedy – “and then act accordingly”.


At the heart of the particular “personal tragedy” over which the judge had to preside in this case was the story of Johannes Smith, an expert in non-food consumer goods, their procurement, stocking and re-sale. He was employed as the general manager of a Pretoria general wholesaler and retailer, the Kit Kat Group, and was based in the company’s head office.
No-one had anything but the highest regard for how Smith carried out his duties, and there was evidence that he was “a valued and senior employee”, reporting directly to the company proprietors – the Gani family – and in particular to the joint CEO, Ahmed Gani. Clearly Smith had a “very good working relationship” with his work colleagues and was respected by them.
Then came the tragedy that almost ended his life: after work one day in September 2013 he tried to commit suicide by putting a firearm in his mouth and pulling the trigger. He survived, but needed a number of operations to repair the worst damage to his face and his mouth.


The extent of the damage to Smith became relevant to the litigation and in his decision the judge wrote of his observations when Smith gave evidence: “The disfigurement to his face was clearly apparent”, but it would not have given a casual observer “a sense of involuntary shock”.
Smith also spoke slowly and in a laboured way because of the damage to his mouth. But though the judge had little difficulty understanding him, he came to the conclusion that the man was left permanently physically disabled “to some extent” by his suicide attempt.
That finding would prove crucial later in the judgment, because of the way employers are bound to treat and respond to “disabled employees”.
Throughout Smith’s recuperation process he was helped by his brother-in-law Frans van der Walt and it was Van der Walt who approached the Gani family to discuss Smith’s future with the group. He was told by the top officials that Smith was “a valued employee” and “part of the family”. He could come back to work as soon as he was ready, Van der Walt was told. But all these encouraging remarks would soon turn out not to reflect management’s real views on the matter.

“Not facially acceptable”

Having undergone various forms of treatment, physical and psychological, Smith was ready to return to work five months later. And that is when he began to discover that his employers had not been telling him the truth. Despite doctors’ certificates to the effect that he was stable and could start work again, his employers began to make remarks to the effect that he was “not facially acceptable” and that just by being at work he would “remind (other) employees of the unfortunate event”.

At this stage though, when management postponed his return to work date, he was still being offered sops such as “Please note that (you are) always welcome back”, and that the company “needed him back at work”.


Then the ambivalence became clearer and eventually Abdul Gani made it plain that his initial encouraging remarks were made “just to be kind”. He said Smith was “cosmetically unacceptable” and his return would “traumatise” other staff. He suggested that Smith put in a disability claim with the provident fund, even suggesting how Smith could complete the forms in such a way as to side-step the problem posed by the fund’s benefit exclusion of self-inflicted injury – something that would clearly have been fraud. Above all, Abdul made it clear that Smith “was not welcome back at work”.
Correspondence and meetings continued until a final showdown during which Smith realised there was an implacable block to his returning to work. The problem however was that while he tendered his services the employer never actually dismissed him though he was told he could not go back: he was being kept in limbo. At this point lawyers became involved, but KitKat simply ignored all correspondence from Smith’s attorneys.


A dispute was declared and an unsuccessful attempt at conciliating the dispute led to a labour court hearing of several days.
The judge formally found Smith “a person with a disability”, adding that there was never any doubt that he was “mentally and physically fit and able to work”. Moreover, he had consistently tendered his services. In the view of the judge, his employers were “nothing but hypocritical” when they repeatedly assured him he would be welcomed back, and their refusal to let him work was “squarely founded” on his new disability.
The court found that the employer’s “unacceptable” approach was to duck the issue and avoid it as long as possible. When Smith tendered his service he should have been accepted back. If the employer believed he was substantially impaired from doing his job because he was “cosmetically unacceptable” and had a speech impediment, then they should have acted by holding a proper enquiry into whether he could do the job. But simply saying he could not return to work was “tantamount to a repudiation” of Smith’s contract of employment, and by their conduct they effectively dismissed him.


Was his dismissal fair? The employer claimed his speech impediment made him unable to do his job “fully”. Even if that claim were to be accepted, said the judge, the employer had done nothing that would “even remotely substantiate” this view. There was no investigation into the impact of his impediment; no assessment of the extent of Smith’s inability, claimed by the employer, to interact with fellow employees or suppliers. Nor was there any consideration of whether he could be accommodated, if indeed the disability was a problem. The employer had simply assumed that “disability automatically equates to incapacity, which is not so.”

Not a runway model

The judge held the conduct of the employer was “completely unfair” and his dismissal was likewise unfair. He said it was a “complete mystery” to him why the employer would several times refer to Smith as “cosmetically unacceptable”. “I find such an approach to be appalling. To exclude (Smith) from working because of how he looked, especially considering he was not employed as a run way model for a fashion house, is simply inexplicable”.
The court awarded Smith 30 months’ pay as a combination of damages and compensation for the “humiliation and hurt” he suffered, mentioning that there was a punitive component in such an award as well since the employer acted in bad faith. The employer had not acknowledged any wrong-doing on its part and persisted in the attitude that if it ignored the problem it would go away. “The compensation awarded must also serve as a deterrent.”
He ordered the employer to pay a total of R1 540 199.40 in damages and compensation within ten days of the judgment. The employer was also ordered to facilitate Smith’s withdrawal from the provident fund so he could be paid what he was due by the fund – and the judge also awarded punitive legal costs against the employer.


Right at the start the judge characterised the case as tragic and indeed, at many levels it is so. Apart from the terrible and too rarely acknowledged impact of depression, it illustrates how little is generally understood by employers about the law on disabled workers. It also shows the devastating discrimination that disabled workers must constantly face. According to the latest available government figures 7.5 percent of people in South Africa are disabled with about 1.5 percent having mild difficulty in communicating. Though there is good international law and South Africa law protecting people with disabilities, and despite legislation designed to encourage employment of people with disabilities, very little progress has been made.


An official report drawn up following the 2011 census comments on the low representation of persons with disabilities in the work place, saying it leaves a number of questions unanswered about why more disabled people aren’t finding jobs: “is it noncompliance, prejudice or insufficient skills, or a combination of factors including environmental obstacles,” the report asks. This case certainly gives credibility to the report’s conclusion – that “misconceptions and prejudice” remain the major obstacles.

First published by Legalbriefs 28 September 2016

Smith v Kit Kat Group