disability equity 5

8/8/2019 Disability Equity 5

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Disability Equity Management

Introduction Session 5


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1st Industrial Court Decision onneed to treat incapacitated

employees fairly


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Duty to Respect IncapacitatedEmployees Rights

SA Vereniging van Munisipale Werknemers (Nie-Politiek) & 'n Ander v Ventersdorp Munisipaliteit(1990) 11 ILJ 1155

Industrial Court establishes ethical duty to treatincapacitated employees at dismissal fairly: "A person's point of departure should be to treat others as

you would wish to be treated in similar circumstances." [at

1170 B] [Original text: " 'n Mens se uitgangspunt behoort te wees

om ander te behandel soos wat jy graag behandel sou wouword in derglike omstandighede."]

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Duty to Respect IncapacitatedEmployees Rights

SA Vereniging van Munisipale Werknemers (Nie-Politiek) & 'n Ander v Ventersdorp Munisipaliteit

(1990) 11 ILJ 1155 Industrial Court establishes ethical duty an ethical

obligation to not mistreat incapacitated employees: "A person must be vigilantagainst treating people like

inanimate work implements." [at1170 C]

[Original text: " 'n Mens moet daarteen waak om nie mensesoos lewelose werktuie te behandel nie."]

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1st Constitutional Court Decision onduty to show compassion and ubuntu to

employees living with HIV


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ConCourt: Duty to ShowCompassion and Ubuntu

Hoffman v South African Airways

CASE NO: Case CCT 17/0020 "People who are living with HIV must be treated with

compassion and understanding. We must show ubuntu

towards them. They mustnot be condemned to 'economicdeath' by the denial of equal opportunity in employment.

35 However, we mustguard against allowing stereotyping andprejudice to creep in under the guise of commercialinterests. The greater interests of society require therecognition of the inherent dignity of every human being,and the elimination of all forms of discrimination. OurConstitution protects the weak, the marginalised, thesocially outcast, and the victims of prejudice andstereotyping. It is only when these groups are protectedthat we can be secure that our own rights are protected.

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1st Constitutional Court Decision indisability law on diversity and

reasonable accommodation


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ConCourt: reasonable accommodationand its role in diversity

MEC For Education: KwaZulu-Natal V Pillay - contd 2

The Equality Actplaces a duty on the state todevelop codes of practice . . . in order topromote equality, and develop guidelines,including codes in respect of reasonableaccommodation and permits courts to orderthat a group or class of persons be reasonablyaccommodated.

Finally, section 14(3)(i)(ii) lists as a factor for thedetermination of fairness the question whetherthe applicant has taken reasonable steps toaccommodate diversity.

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73 But what is the content of the principle? At itscore is the notion that sometimes the community,whether it is the State, an employer or a school,

must take positive measures and possibly incuradditional hardship or expense in order to allowall people to participate and enjoy all their rightsequally. It ensures that we do not relegatepeople to the margins of society because they do

not or cannot conform to certain social norms. InChristian Education, in the context ofaccommodating religious belief in society, aunanimous Court identified the underlyingmotivation of the concept as follows:

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The underlying problem in any open and democratic societybased on human dignity, equality and freedom in whichconscientious and religious freedom has to be regarded withappropriate seriousness, is how far such democracy can and

must go in allowing members of religious communities to definefor themselves which laws they will obey and which not. Such asociety can cohere only if all its participants accept that certainbasic norms and standards are binding. Accordingly, believerscannot claim an automatic right to be exempted by their beliefs

from the laws of the land. At the same time, the State should,wherever reasonably possible, seek to avoid putting believers toextremely painful and intensely burdensome choices of eitherbeing true to their faith or else respectful of the law.

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MEC For Education: KwaZulu-Natal V Pillay - contd 474 The idea extends beyond religious belief. Its

importance is particularly well illustrated by theapplication of reasonable accommodation to disabilitylaw. As I have already mentioned, the Equality Actspecifically requires that reasonable accommodationbe made for people with disabilities. Disabled peopleare often unable to access or participate in public orprivate life because the means to do so are designed

for able-bodied people. The result is that disabledpeople can, without any positive action, easily bepushed to the margins of society:

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Exclusion from the mainstream of society results from theconstruction of a society based solely on mainstreamattributes to which disabled persons will never be able to gainaccess. Whether it is the impossibility of success at a written

test for a blind person, or the need for ramp access to alibrary, the discrimination does not lie in the attribution ofuntrue characteristics to the disabled individual. The blindperson cannot see and the person in a wheelchair needs aramp. Rather, it is the failure to make reasonableaccommodation, to fine-tune society so that its structures and

assumptions do not result in the relegation and banishment ofdisabled persons from participation, which results indiscrimination against them. Eaton v Brant County Board ofEducation [1997] 1 SCR 241 at para 67.

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75 While the extent of this exclusion is mostpowerfully felt by the disabled, the same

exclusion is inflicted on all those who areexcluded by rules that fail to accommodate thosewho depart from the norm. Our society whichvalues dignity, equality, and freedom musttherefore require people to act positively to

accommodate diversity. Those steps might be assimple as granting and regulating an exemptionfrom a general rule or they may require that therules or practices be changed or even thatbuildings be altered or monetary loss incurred.

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The latter approach is more in line with the spiritof our constitutional project which affirmsdiversity.

However, the utility of either of these phrases islimited as ultimately the question will always be acontextual one dependant not on its compatibilitywith a judicially created slogan but with the values

and principles underlying the Constitution.Reasonable accommodation is, in a sense, anexercise in proportionality that will dependintimately on the facts.

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77It is now necessary to crystallise the rolethat reasonable accommodation can play

in the Equality Act. As noted earlier, theprinciple is mentioned on a number ofoccasions in the Equality Act. Whatconcerns us in this case, however, issection 14(3)(i)(ii) which states that takingreasonable steps to accommodatediversity is a factor for determining thefairness of discrimination

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From this it is clear that reasonableaccommodation will always be animportant factor in the determination of

the fairness of discrimination. It wouldhowever be wrong to reduce the test forfairness to a test for reasonableaccommodation, particularly because thefactors relevant to the determination of

fairness have been carefully articulated bythe legislature and that option has beenspecifically avoided.

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Constitutional Court Decision on

meaning of constitutional dignity


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Constitutional Court on Meaning ofDignity

Ferreira v Levin NO and Others and Vryenhoek andOthers v Powell NO and Others

1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

Human dignity has little value without freedom;for without freedom personal development andfulfilment are not possible. Without freedom,human dignity is little more than an abstraction.

Freedom and dignity are inseparably linked. Todeny people their freedom is to deny them theirdignity.

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Constitutional Court on Meaning ofDignity

MEC For Education: KwaZulu-Natal V Pillay

A necessary element of freedom and ofdignity of any individual is an entitlement torespect for the unique set of ends that theindividual pursues.

Woolman Dignity in Woolman et al (eds)Constitutional Law of South Africa 2 ed (Juta,Cape Town 2006) at 36-11.

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1st Labour Court Decision on disability

and reasonable accommodation


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Labour Court: 1st Disability Law Decision

Standard Bank v Commission for Conciliation Mediation& Arbitration

IR 62/06; [2007] ZALC 98; [2008] BLLR 356 (LC)

61 The Constitution, several statutes including the EEA and theLRA and Codes of Practice protect employees with disabilitiesas a vulnerable group because they are a minority withattributes different from mainstream society.

Unemployment, lower wages, poorer working conditions andbarriers to promotion plague people with disabilities here and

abroad.Their employment rate is less than a third of the generalpopulation

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Standard Bank v CCMA - contd 2

Many employers tend to exclude and marginaliseemployees with disabilities not merely because the disabilityimpairs the employees suitability for employment, but also

because the employer regards the disability as anabnormality or flaw.

When the attitude that disability is the problem of thedisabled individual, not society, that the workplace ishazardous for disabled people and thatthey need to be

looked after combines with paternalism, charitableness,ignorance and misinformation about disabilities, the result isthat more disabled people are dismissed thanaccommodated.

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66 When employers accommodate employees effectively,they restore dignity to employees. Restoring the dignity ofemployees is also about returning the employee to thesame job if possible. By returning Hoffman to his job as

cabin attendant for South African Airways, theConstitutional Court aimed specifically at restoring hisdignity.

80 Consequently, if an employer fails to reasonably

accommodate an employee with disabilities, the dismissal

of that employee is not merely unfair but automaticallyunfair. An employer who unreasonably refuses to make

any accommodation that falls short of unjustified hardship,

or refuses to give reasons for not making an

accommodation is irrational.

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84 Because it protects against automatically unfair dismissal,reasonable accommodation is more onerous than a generalobligation to implement affirmative action.

Although reasonable accommodation is sometimes used

synonymously with affirmation action, in relation toaccommodating people with disabilities to avoid dismissal it is aterm of art with most jurisdictions defining it similarly.

Reasonable accommodation of people with disabilities is alsomore onerous than accommodating religious and cultural beliefs.Practicing religious and cultural beliefs is a freedom whereasdisability is an imposition.

Furthermore, people with disabilities are a cost to the economywhile vulnerable religious and cultural groups are not obviouslyso. Hence the jurisprudence on reasonable accommodation forreligious and cultural beliefs and possibly other vulnerablegroups may not apply to disability.

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85 Another difference between an employers

obligations to implement affirmative action andreasonably accommodate people with disabilitiesis that measures to affirm employees applygenerally to all employees within the group,whereas to accommodate employees with

disabilities the employer has to tailormodifications and adjustments for the specificdisabilities of each employee.

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81 An employer cannot justifytreatment of a disabled person thatamounts to direct discrimination.

An employer also discriminates

against a disabled person if it fails tomake reasonable

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SA Vereniging van Munisipale Werknemers (Nie-Politiek)& 'n Ander v Ventersdorp Munisipaliteit (1990) 11 ILJ1155

A. Strongly Agree

B. Agree

C. Disagree

D. Strongly Disagree

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Show the man - machineperspective of the worker is

inappropriate


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MEC For Education: KwaZulu-Natal V PillayCASE NO: ( CCT 51/06 ) and [2007] ZACC 21

A. True

B. False

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Show the employer should be

proactive in enabling them to enjoytheir rights equally


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73 But what is the content of the principle?At its core is the notion that

sometimes the community, whether itis the State, an employer or a school,must take positive measures and

possibly incur additional hardship or

expense in order to allow all people toparticipate and enjoy all their rightsequally.


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A. True

B. False

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Extends the judgment and make

specific pronouncements aboutreasonable accommodation to

disability


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74 The idea extends beyondreligious belief. Its importanceis particularly well illustrated

by the application of

reasonable accommodation todisability law.


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A. True

B. False

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At the same time does show that

reasonable accommodation is appliedin a wider context


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From this it is clear thatreasonable accommodation willalways be an important factor

in the determination of the

fairness of discrimination


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Standard Bank v Commission forConciliation Mediation & Arbitration

A. True

B. False

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if an employer fails to reasonably

accommodate an employee with

disabilities, the dismissal of thatemployee is not merely unfair but

automatically unfair. irrational.


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disability equity 5

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