South African Municipal Workers Union obo Damons v City of Cape Town

Mr A Damons, a firefighter employed by the City of Cape Town, was permanently injured on duty in 2010. Following incapacity proceedings concluded in January 2013, he was reasonably accommodated by being transferred to non-operational positions within the Fire and Rescue Service, while retaining his designation, salary level, and standby allowance as a Firefighter. The City’s Fire and Rescue Advancement Policy requires firefighters seeking promotion to Senior Firefighter to pass a practical physical assessment. Because of his disability, Damons could not meet the physical requirements and was therefore barred from advancement. He alleged that the application of the Policy unfairly discriminated against him on the basis of disability.

The Court declared that the application of the Advancement Policy to Mr Damons constituted unfair discrimination in terms of section 6(1) of the Employment Equity Act and ordered the City of Cape Town to reconsider his advancement application within 15 court days. No order as to costs was made.

This case is significant for clarifying the application of the Employment Equity Act to employees with disabilities who have been reasonably accommodated. It confirms that an employer cannot rely on the ‘inherent requirements of the job’ defence where its own conduct demonstrates that the employee can remain employed within the role structure, and that denying advancement in such circumstances may amount to unfair discrimination.