Damons v City of Cape Town

Adam Damons was employed as a firefighter by the City of Cape Town from 1 February 2001. In 2010, during a fire drill, he was injured due to the respondent's failure to follow safety procedures. The injury resulted in permanent disability that prevented him from carrying more than 10 kilograms and performing strenuous physical activity. Physical fitness is an inherent requirement for operational firefighters. After incapacity hearings, Damons was transferred in January 2013 to a non-operational position in the Fire and Life Safety Section performing administrative and educational work. He retained his firefighter designation and salary level. The City introduced a Fire and Rescue Advancement Policy on 1 April 2009, applicable to operational firefighters. The Policy required successful completion of a physical assessment for advancement to senior firefighter. Damons applied for advancement but the City refused to waive the physical fitness requirement. He referred a dispute to the CCMA alleging unfair discrimination under section 10(2) of the Employment Equity Act on the ground of disability.

• Whether the City's refusal to advance Damons to senior firefighter constituted unfair discrimination on the ground of disability under section 6(1) of the Employment Equity Act
• Whether physical fitness is an inherent requirement of the job of senior firefighter under section 6(2)(b) of the Employment Equity Act
• Whether the City had a duty to reasonably accommodate Damons
• The scope and application of reasonable accommodation under the Employment Equity Act
• The interplay between the defence of inherent requirements of a job and the obligation to reasonably accommodate persons with disabilities
• Whether the City's application of the Policy to Damons was unfair discrimination

Leave to appeal granted. Appeal dismissed with no order as to costs.

Where physical fitness is established as an inherent requirement of a job (such as senior firefighter) under section 6(2)(b) of the Employment Equity Act, and an employee with disabilities cannot meet that requirement even with reasonable accommodation, the inherent requirements defence provides a complete defence to a claim of unfair discrimination under section 6(1). The obligation to reasonably accommodate under the EEA applies only where such accommodation would enable an employee to fulfil the inherent requirements of the job. Accommodation that goes beyond enabling performance of inherent requirements - such as requiring an employer to employ someone who cannot perform those requirements or to create new positions - ceases to be reasonable accommodation within the meaning of the Act.

The majority made observations about the role of the Compensation for Occupational Injuries and Diseases Act in ameliorating consequences of workplace injuries, and existing obligations on large employers to implement affirmative action measures for persons with disabilities. The majority also commented that the concept of "undue hardship" while used in international case law, is not dealt with in the EEA and was not relevant to determination of this case. The minority made extensive observations about: (1) the importance of ubuntu in employment relationships and disability law; (2) international law instruments including the CRPD and their interpretive value; (3) the shift from welfarist to human rights models of disability; (4) the development of reasonable accommodation beyond affirmative action; (5) proportionality as a test for reasonable accommodation; (6) the heightened duty on state employers, particularly where the state caused the disability; (7) reasonable accommodation as an ongoing process requiring good faith engagement; (8) the capabilities approach to assessing accommodation; and (9) the importance of not allowing formalistic pleading requirements to defeat substantive constitutional rights, drawing parallels with Holomisa.

This case clarifies the relationship between the inherent requirements of a job defence under section 6(2)(b) of the Employment Equity Act and the obligation to reasonably accommodate persons with disabilities. The majority judgment confirms that once an employer establishes that a requirement is inherent to a job, and an employee cannot meet that requirement even with reasonable accommodation, the inherent requirements defence provides a complete answer to an unfair discrimination claim. The case illustrates the limits of reasonable accommodation - it does not require employers to employ persons who cannot perform inherent job requirements or to create new positions. However, the minority judgment emphasizes the importance of reasonable accommodation as a substantive equality measure and highlights the particular obligations on state employers who cause workplace injuries resulting in disability. The case also demonstrates the crucial importance of pleadings in defining the scope of disputes, even in constitutional matters. The divergent approaches reveal ongoing debates about disability law, the social versus medical model of disability, and the balance between employer prerogatives and employee rights.