The com­pany, which ‘ma­nip­u­lated’ an em­ployee’s med­i­cal con­di­tion in or­der to fire her, has been taken to task by the labour ap­peal court

Financial Mail - - IN GOOD FAITH BY CARMEL RICKARD - @carmel­rickard

No woman in her right mind would choose to work for Pharmaco Dis­tri­bu­tion. That was my con­clu­sion this week af­ter read­ing judg­ment in a case in­volv­ing the phar­ma­ceu­ti­cal com­pany and its CEO, Roberto Agus­toni.

This is the man who, in his court ev­i­dence, agreed that if a woman em­ployee were “slug­gish” at a “par­tic­u­lar point of the month” he could in­sist she sub­ject her­self to an ex­am­i­na­tion by the com­pany’s ap­pointed gy­nae­col­o­gist. Who, I won­der, would want to work with that threat­ened hu­mil­i­a­tion hang­ing over her head?

It was also Agus­toni who cat­a­pulted the com­pany into lit­i­ga­tion: hav­ing dis­cov­ered that an “ex­cep­tional” sales rep was bipo­lar, he in­sisted she sub­mit to an ex­am­i­na­tion by a com­pany-ap­pointed psy­chi­a­trist. When she re­fused, she was sacked for what the com­pany called a “par­tic­u­larly se­ri­ous and/or re­peated wil­ful re­fusal to carry out law­ful in­struc­tions”.

The staffer, re­ferred to by the labour court as “EWN”, had been in­volved in a dis­pute with Pharmaco over what she claimed was short pay of her sales com­mis­sion. An ar­gu­ment fol­lowed and, in short or­der, Agus­toni in­sisted she be as­sessed by a psy­chi­a­trist.

As the labour ap­peal court would later put it: EWN “per­formed at a su­pe­rior level . . . en­joyed her work, was bril­liant at it and in­ter­acted well with other mem­bers of staff”. How­ever, the com­pany then “used her bipo­lar con­di­tion . . . to in­tim­i­date her into sub­mit­ting to its de­mands in so far as her griev­ance re­lat­ing to com­mis­sion was con­cerned”.

Jus­ti­fy­ing its treat­ment of EWN, Agus­toni told the court that staff signed a con­tract agree­ing that, when­ever the com­pany “deems it nec­es­sary”, the em­ployee “will un­dergo a spe­cial­ist med­i­cal ex­am­i­na­tion” at com­pany ex­pense, with the re­sults — in­clud­ing any psy­cho­log­i­cal eval­u­a­tions — be­ing made avail­able to Pharmaco.

EWN dis­puted her dis­missal and won her case at the labour court, where Judge Robert

La­grange held that it was un­law­ful for the com­pany to in­sist that staff sub­mit to med­i­cal test­ing. The judge said in this case in­sist­ing on a test was a “stig­ma­tis­ing act”, ag­gra­vated by re­marks from se­nior com­pany of­fi­cials who sug­gested EWN was “men­tally un­sta­ble”.

Then Pharmaco ap­pealed — a move that led to the com­pany again try­ing to de­fend the in­de­fen­si­ble.

The three ap­peal judges came down even more heav­ily on the com­pany, call­ing parts of the con­tract “patently of­fen­sive and in­va­sive” of staffers’ right to pri­vacy. They were crit­i­cal of the labour court for be­ing too le­nient on Pharmaco and said when the judge awarded dam­ages to EWN it did not suf­fi­ciently fac­tor in key is­sues: the way the com­pany “ma­nip­u­lated” the woman’s med­i­cal con­di­tion to fa­cil­i­tate her dis­missal or the hu­mil­i­a­tion she suf­fered as a re­sult of the em­ployer’s be­hav­iour. The com­pany’s in­struc­tion that she at­tend the med­i­cal ex­am­i­na­tion with the psy­chi­a­trist amounted to “an act of vic­tim­i­sa­tion”, said the judges.

‘In­sult­ing, de­grad­ing, hu­mil­i­at­ing’

When a dis­missal is found, as here, to be “au­to­mat­i­cally un­fair”, the courts have a wider than usual dis­cre­tion to award com­pen­sa­tion as “de­ter­rence” so that em­ploy­ers are dis­suaded from un­fair dis­missals in the fu­ture.

In this case, said the ap­peal judges, the com­pany’s ap­proach was “in­sult­ing, de­grad­ing and hu­mil­i­at­ing”. Even af­ter Pharmaco sacked EWN, the com­pany did not seem to ap­pre­ci­ate its “dis­grace­ful con­duct” or the “of­fen­sive­ness” of its be­hav­iour.

The judges there­fore in­creased the labour court’s dam­ages award from R220,000 to R285,000 — with costs in both courts. But they found that the ad­di­tional R15,000 awarded to EWN by the labour court for im­pair­ment of dig­nity had to be set aside be­cause it would amount to pun­ish­ing the com­pany twice for the same wrong­ful act.

[Pharmaco] used [the em­ployee’s] bipo­lar con­di­tion . . . to in­tim­i­date her into sub­mit­ting to its de­mands Labour ap­peal court

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