Picture: ISTOCK
Picture: ISTOCK

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

This is the man who, in his court evidence, agreed that if a woman employee was “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 that 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”.

[ Pharmaco] used [the employee's] bipolar condition . . . to intimidate her into submitting to its demands

The staffer, referred to by the labour court as EWN, had been involved in a dispute over what she claimed was short pay, with Pharmaco refusing to hand over a significant amount of the commission she said was due.

An argument followed and in short order Agustoni insisted she be assessed by a psychiatrist. As the labour appeal court would later put it: she “performed at a superior level ... enjoyed her work, was brilliant at it and interacted well with other members of staff”.

The company then “used her bipolar condition as a means to intimidate her into submitting to its demands insofar as her grievance relating to commission was concerned”.

In trying to justify the company’s 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 that 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 bad move that led to the company once again trying to defend the indefensible.

'Insulting, degrading and humiliating'

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 with Pharmaco and said that 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.

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

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

Its failure to recognise its “disgraceful conduct” was borne out by Agustoni’s belief that he was entitled to tell a staff member with facial lesions “to submit to a blood test”, or to “ask a female employee who appeared sluggish to submit to the company’s gynaecologist for assessment”.

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.

When I spoke to EWN after the appeal judgment she said other Pharmaco employees had been too fearful to stand up to management. This made her all the more determined to press on with court action, even though the fight had taken seven years.

Other representatives had learned that if you asked questions “too vigorously” about payment of disputed commission “you could be fired”, she said.

“I could not believe my ears when I heard the CEO in court confirming that he would insist on a woman being examined if she was ‘sluggish’ ”.

The representatives were trained by the company to sell medicine for mental conditions such as depression. “You are supposed to say that people can function perfectly normally if they take these pills. Yet for the representatives themselves it was quite different as far as the company was concerned.

“Here I was, taking my pills, and my psychologist said I was doing well — yet they still suggested that there was something wrong with me and that I had to be examined by their psychiatrist. It was ridiculous.

"Fortunately for me, the next place I moved to took a completely different approach."

A company official said this week that Agustoni was away for the week, travelling, and that no-one else at Pharmaco was allowed to speak to the media.

The Labour Appeal Court judgment on this case does not redact the name of the Pharmaco employee (as does the original Labour Court judgment) and so we have decided to remove the appeal court decision from this site to protect the identity of the woman concerned.

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