12 August 2005

South Africa: Diabetic Firefighter Wins Against Municipality

The Cape High Court has found the Cape Town municipality guilty of unfair discrimination after it refused to employ a diabetic as a fireman.

The court, in the precedent-setting case, in July ruled that the council was wrong not to give John Murdoch (31), an insulin-dependent diabetic, a job if the only reason for the decision was that he suffered from the "type one" variety of the chronic illness.

Type one diabetes is a disorder in which the pancreas no longer produces insulin. It cannot be prevented, but is detectable and treatable, usually by regular insulin injections.

The case is believed to be the first in South African legal history where a diabetic condition was used by an employer, and challenged by an employee, as a basis to discriminate.

Murdoch, of Fish Hoek, Cape Town, had been a volunteer reservist firefighter since 1991, when he was still at high school. He joined the local council as a law enforcement officer in July 1997.

In February 2002, he asked to be transferred to the fire department, but there were no posts available at the time. When a vacancy opened in that department, Murdoch passed the physical tests and impressed during the interview. He failed the medical tests and was denied the job.

The council denied that the discrimination was unfair, saying "the history of the blanket ban against type one diabetes was [based on] the factual history of treatment of a diabetic dependent on insulin. The disadvantage arises primarily from the medical condition itself; and the extent to which it rendered them incapacitated."

The court rejected this view and upheld Murdoch's approach that each insulin-dependent diabetic case be dealt with on its own merits.

"The respondent is guilty of assigning characteristics which are general assumptions about groups of people to each individual who is a member of that group, irrespective of whether that particular individual displays the characteristic in question."

The court accepted expert testimony from Murdoch's doctor and one of the country's leading scholars on endocrinology and diabetes, Professor Francois Bonnici, suggesting that South Africa's blanket ban discriminating against people afflicted by type one diabetes was outdated. It also accepted evidence by a United Kingdom firefighter, Tim Hoy, who has been at the job since 1998 despite also suffering from type one diabetes.

The court said the "medically sound judgement by South Africa's leading expert on diabetics, Professor Bonnici, is incontrovertible that the blanket ban is irrational, unfair and unjustifiable in the light of current medical knowledge".

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