ILL WILL AT PHARMACO

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

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