Will that clause protect you? Think again!

In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC) the employee suffering from bipolar disorder 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 court found that her dismissal was automatically unfair.

In this case, senior management of the employer became aware of the employee’s bipolar condition after she disclosed her bipolar status to the employer during disciplinary proceedings. The employer then required her to undergo medical testing to determine whether or not she was fit to perform her tasks as a result of her bipolar status. The employee refused to undergo medical testing and was later charged for a ‘particularly serious and/or repeated wilful refusal to carry out lawful instructions or perform duties’. The instruction she failed to perform, and which ultimately led to her dismissal, was to present herself to a psychiatrist, for a medical examination. The employee claimed that the instruction was unlawful while the employer contended that the instruction was reasonable and lawful in terms of her contract of employment.

A clause in the employee’s contract provided:

‘The employee will, whenever the company deems necessary, undergo a specialist medical examination at the expense of the company, by a medical practitioner nominated and appointed by the company. The employee gives his/her irrevocable consent to any such medical practitioner making the results and record of any medical examination available to the company and to discuss same with such medical practitioner. The above shall include and apply to psychological evaluations.’

The main issues the court had to decide on were whether the provision was enforceable; and whether her dismissal for failing to submit to a medical examination was automatically unfair in terms of s187(1)(f) of the Labour Relations Act (LRA) 66 of 1995.

In its decision, the court found that the clause in the employee’s contract of employment was in breach of the provisions of s7 of the Employment Equity Act (EEA) 55 of 1998 and found that the clause was of no legal force or effect.

Section 7(1) of the EEA prohibits the medical testing of an employee and aims to prevent unfair discrimination on the grounds of an employee’s medical condition. Subsection (a) and (b) however provides that medical testing will be permitted when legislation permits or requires medical testing or when the testing of an employee can be justified in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

The court held that the section provides no exception based on the consent of the employee in an employment contract and that medical testing will only be permitted in the circumstances set out in paragraphs (a) and (b) which ultimately did not find application in this case. The court also found that the instruction to undergo psychiatric testing on account of the employee’s bipolar condition amounted to unfair discrimination in terms of s6 of the EEA. The dismissal of the employee for refusing to undergo a psychiatric evaluation to determine her fitness to work was found to be an automatically unfair dismissal in terms of s187(1)(f) of the LRA.

Employers are advised to note that where an employee’s contract of employment contains clauses pertaining to the consent by the employee to undergo medical testing, that those clauses will not necessarily protect the employer. It is important for employers to bear in mind that medical testing will only be permitted in the circumstances as set out in subparagraphs (a) and (b) of s7 of the EEA as exceptions.