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INHERENT REQUIREMENT OF PHYSICAL FITNESS AS A COMPLETE DEFENCE TO A CLAIM OF UNFAIR DISCRIMINATION

  1. On 30 March 2022, the Constitutional Court handed down judgment in the City of Cape Town’s favour in the alleged unfair discrimination dispute of Damons v City of Cape Town [2022] ZACC 13. Bradley Conradie argued the matter before the Constitutional Court on behalf of the City.
  2. On 1 April 2009 the City introduced its Fire and Rescue Advancement Policy (the Policy), which provided a mechanism for employees involved in operational firefighting activities to advance within the firefighting ranks.
  3. In order for Mr Damons to advance from the rank of firefighter to senior firefighter, he was required to successfully undergo a practical physical assessment.
  4. In 2010 Mr Damons was injured on duty during a training drill which resulted in him not being able to pass the practical physical assessment.
  5. On 23 January 2013, following an incapacity enquiry, Mr Damons was accommodated by the City by being transferred to its Finance and Billing Section and thereafter to the Fire and Life Safety Education Section where he could do administrative and educational work and was not required to perform operational firefighting functions. Mr Damons however retained his designation as a firefighter and his salary level.
  6. Mr Damons subsequently applied for advancement to the position of senior firefighter and requested that the physical fitness requirement be waived. The City declined his request on the basis that physical fitness was an inherent requirement for the job of a senior firefighter. Unhappy, Mr Damons referred an unfair discrimination dispute to the Labour Court.
  7. The Labour Court held that the City unfairly discriminated against Mr Damons and that the Policy should be amended. The Labour Appeal Court however overturned the Labour Court’s judgment and held that physical fitness was an inherent requirement of the position of a senior firefighter and waiving that requirement would not be in the best interest of the public.
  8. In the Constitutional Court the minority found that the City’s defence that physical fitness was an inherent requirement of the job was not a justification for refusing to reasonably accommodate Mr Damons in non-operational functions given that he was injured on duty.
  9. The majority of the Constitutional Court however disagreed and, amongst other things, held as follows:
    • “[a]lthough it is tempting to have regard to the circumstances surrounding the applicant’s injury, which are emotionally compelling, they are not logically connected to the central issue in the case, namely the alleged unfair discrimination brought about by the Policy’s inherent requirement for the job of senior firefighter.”
    • The Policy only applies to operational firefighters and their advancement.
    • There was a consensus reached on the requirements for advancement to the position of senior firefighter and since the inception of the Policy, no firefighter had been advanced who did not meet all the requirements.
    • Mr Damons’ pleaded case was in any event never about his possible advancement in the non-operational sphere but was instead about his advancement in the operational sphere as a firefighter.
    • The City reasonably accommodated Mr Damons, not in the post of a senior firefighter to which he seeks to be advanced, but in an alternative post, first in the Finance and Billing Section and then in the Fire and Life Safety Education Section. The City could not have been expected to employ Mr Damons in a job in which he could not fulfil the inherent requirements of the job. It was therefore under no legal obligation to allow him to work in the Fire and Rescue Service’s operational section.
    • The fact that physical fitness as an inherent requirement of the job was therefore found to be a complete defence to his alleged unfair discrimination claim – the questions of reasonable accommodation and undue hardship did not have to be determined.
  1. This judgment therefore confirms that the inherent requirements of a job would be a complete defence to an alleged unfair discrimination claim. It also emphasises the importance of properly pleading a case from the outset.

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