Abstract
ABSTRACT Persons with disabilities are a historically marginalised minority, who have the capacity to make a valuable contribution in the workplace. Recent case law suggests that the duty to reasonably accommodate disabled employees remains a conundrum for employers in South Africa. In Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018) the Labour Appeal Court had an opportunity to make a definitive pronouncement on the meaning and reach of the employer's duty to reasonably accommodate a disabled employee. Even though the duty to reasonably accommodate disabled employees is set out in our legislative and policy frameworks, there is a need to have a more detailed framework. The Constitutional Court is yet to hear a case on the duty of employers to provide reasonable accommodation to employees with disabilities, and until we have such a precedent, more and more employees with disabilities will continue to suffer at the hands of their employers. Both the Code of Good Practice, as well as the Technical Assistance Guidelines , published by the Department of Labour, have gone "relatively unnoticed and unread" in the workplace. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code, as well as in the Technical Assistance Guidelines. Employers need to undertake proper investigations, with the assistance of experts if needs be, to investigate an employee's incapacity. Keywords: Disability, Reasonable accommodation, Persons with disabilities.
Highlights
The Constitutional Court is yet to hear a case on the duty of employers to provide reasonable accommodation to employees with disabilities, and until we have such a precedent, more and more employees with disabilities will continue to suffer at the hands of their employers
The judgment deals with various important aspects, such as, the blurred line between incapacity and misconduct, and automatic unfair dismissal, the aim of this article is to discuss the judgment of Mthombeni AJ, in order to highlight the need for detailed legislative provisions, that need to set out what the duty to reasonable accommodation entails, and to make practical suggestion on how employers can accommodate disability in the work place
The Constitutional Court is yet to hear a case on the duty of employers to provide reasonable accommodation to employees with disabilities, and until such a precedent is set by it, more and more employees with disabilities will continue to suffer at the hands of their employers
Summary
“Disability is a natural part of the human experience, and in no way diminishes the rights of individuals to belong and contribute to the labour market. Research has shown that the levels of education and literacy of disabled people are likely to be lower than those of the rest of the population.. Research has shown that the levels of education and literacy of disabled people are likely to be lower than those of the rest of the population.4 Even though they may have the required training, they are often underemployed, and are less likely to have savings and assets, compared to the nondisabled population.. In 2008, South Africa ratified the Convention on the Rights of Persons with Disabilities (Convention) and the Optional Protocol, committing itself to the provisions relating, inter alia, to workplace integration.. 12 Guthrie et al “The South African federal council on disability social security policy options for persons with disabilities in South Africa: an international and comparative review” (2001) available at http://www.ci.uct.ac.za/sites/default/files/image_tool/images/367/publication/2001/polopt4dis.pdf (accessed 20 March 2019)
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