The labour appeal court previously found in favour of the city that physical ability was an inherent requirement of the job and that all firefighters, regardless of disability, were required to undergo a physical assessment before promotion to a senior position.
Damons, who has been employed as a firefighter by the city since 2001, was injured in 2010 during a drill at a fire station. During the drill, firefighters carried each other, instead of carrying mannequins, and Damons was accidentally dropped from the drill tower, suffering multiple injuries that resulted in long-term physical impairment.
Unable to carry out his duties, an agreement was made to transfer him to the finance and billing section, where he fulfilled administrative functions, before being transferred to his current post at the fire and life-safety education section. Damons retained the rank and salary level of a firefighter.
When he applied to become a senior firefighter, Damons complied with all the requirements except for the final requirement of a practical physical assessment. Because of his physical disability, his application was dismissed, despite his request to the city to relax the requirement.
The city supported its dismissal on the basis of an April 2009 advancement policy, which provides criteria for the promotion of firefighters to a senior rank.
Damons has taken the matter to the Commission for Conciliation, Mediation and Arbitration; the South African Local Government Bargaining Council; the labour court; the labour appeal court and now to the Constitutional Court.
Represented by advocate Zixolisile Feni, Damons told the court that he suffered unfair discrimination and that the 2009 policy did not make provision for discrimination based on disability.
Feni said Damons had reached an agreement with the city after the accident “on condition that he is going to retain his remuneration, and benefits, together with future promotions”.
Justice Mbuyiseli Madlanga noted that there was no mention of future promotions on the agreement document and questioned whether such conditions were accepted elsewhere.
The City of Cape Town, as the respondent, said through its representative Bradley Conradie that there had been “lots of conflation between what happened in 2010 [after the injury] and what happened in the subsequent years after Mr Damons was placed in an alternative position”.
Justice Leona Theron said she found it difficult to understand the policy which clearly stated that it applied to all permanent staff members “actively involved” with operational firefighting and rescue activities.
Theron noted that Damons had confirmed in his appeal records that he was not performing as an operational firefighter.
“If the applicant is a firefighter in name only and does not perform the functions of the job of a firefighter, how can it be argued that his current employment as a firefighter demonstrates that physical fitness is not an inherent requirement for the job?” asked Theron.
Conradie said it was evident that physical ability was an inherent requirement of the job of firefighting and that once the inherent requirements were successfully raised, there was no unfair discrimination and no other considerations should be taken into account.
“Mr Damons agrees that the policy does not apply to him. And I think it’s important at this stage of the need to note that concession,” said Conradie.
“[Damons] accepts that he’s not an operational firefighter. He does not want to perform those functions; he can’t perform them, but he wants the city as an employer to create a special stream for him so that he can advance with his career,” Conradie added.
To this, Madlanga wanted to know why the city could not accommodate such applicants, because it was evident that there were more employees in similar positions to that of Damons.
“Call it a historical anomaly. If there are people who are retained, and they are not physically fit … why is it that somebody like Mr Damons cannot be accommodated?” asked Madlanga.
The matter was concluded and judgment was reserved for a later date.