Disability Equity A South African Perspective 1

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Disability Equity A South African Perspective 1

  1. 1. Disability Equity Introduction
  2. 2. Disability Equity Management Context – The Constitution of the Republic of South Africa
  3. 3. Constitution <ul><li>The Oxford English Dictionary defines a constitution as &quot; a body of fundamental principles or established precedents according to which a state or organisation is governed&quot; </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  4. 4. Constitution <ul><li>The Collins dictionary says a constitution consists of &quot; the fundamental principles on which a state is governed, especially when considered as embodying the rights of subjects&quot;. </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  5. 5. Constitution <ul><li>“ a kind of deal or contract between those in power and those who are subjected to this power …” </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  6. 6. Constitution <ul><li>The South African Constitution acknowledges this principle in two ways: </li></ul><ul><ul><li>Constitutional supremacy </li></ul></ul><ul><ul><li>Bill of Rights (Chapter 2) </li></ul></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  7. 7. Bill of Rights <ul><li>“ This Bill of Rights is a cornerstone of democracy in South Africa . It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom” </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  8. 8. <ul><li>human dignity </li></ul><ul><li>equality ,and </li></ul><ul><li>freedom </li></ul>09/04/09 Page
  9. 9. 09/04/09 Page
  10. 10. Bill of Rights – Very Clear <ul><li>Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  11. 11. Bill of Rights – Very Clear <ul><li>Freedom and security of the person </li></ul><ul><ul><li>“… not to be deprived of freedom arbitrarily or without just cause…” </li></ul></ul><ul><ul><li>“… to security in and control over their body…” </li></ul></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  12. 12. Bill of Rights – Very Clear <ul><li>Privacy Everyone has the right to privacy, which includes the right not to have- </li></ul><ul><li>… the privacy of their communications infringed. </li></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  13. 13. Bill of Rights – Very Clear <ul><li>Freedom of religion, belief and opinion </li></ul><ul><li>Freedom of expression </li></ul><ul><li>Labour relations: </li></ul><ul><ul><li>Everyone has the right to fair labour practices </li></ul></ul>http://www.constitutionalcourt.org.za/text/constitution/what.html 09/04/09 Page
  14. 14. 09/04/09 Page
  15. 15. FERREIRA V LEVIN NO AND OTHERS AND VRYENHOEK AND OTHERS V POWELL NO AND OTHERS <ul><ul><li>“ Hu man dignity has little value without freedom ; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity.” </li></ul></ul>09/04/09 Page
  16. 16. DINGAAN HENDRIK NYATHI versus MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF HEALTH, GAUTENG <ul><li>“ In a state that has pledged itself to redeem the dignity of its citizens , it should not be the state itself that tramples on the rights of its citizens. On the contrary, everyone should be working tirelessly to protect and promote that dignity, it being accepted that we are dealing with a majority of previously disadvantaged persons” </li></ul>09/04/09 Page
  17. 17. MEC FOR EDUCATION: KWAZULU-NATAL versus NAVANEETHUM PILLAY – PAR 71 <ul><li>“ Before considering the fairness of the discrimination in this case, it will be convenient to make a few comments about the form of the unfairness inquiry under the Equality Act in circumstances such as the present. Much was said by both parties in argument about the principle of “reasonable accommodation…” </li></ul>09/04/09 Page
  18. 18. MEC FOR EDUCATION: KWAZULU-NATAL versus NAVANEETHUM PILLAY – PAR 72 <ul><li>The concept of reasonable accommodation is not new to our law…The Employment Equity Act defines reasonable accommodation as “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment” and recognises making reasonable accommodation for designated groups as an affirmative action measure e …” </li></ul>09/04/09 Page
  19. 19. MEC FOR EDUCATION: KWAZULU-NATAL versus NAVANEETHUM PILLAY – PAR 73 <ul><li>“ But what is the content of the principle? At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally” </li></ul>09/04/09 Page
  20. 20. MEC FOR EDUCATION: KWAZULU-NATAL versus NAVANEETHUM PILLAY – PAR 74 <ul><li>“ The idea extends beyond religious belief. Its importance is particularly well illustrated by the application of reasonable accommodation to disability law…” </li></ul>09/04/09 Page
  21. 21. MEC FOR EDUCATION: KWAZULU-NATAL versus NAVANEETHUM PILLAY – PAR 74 <ul><li>“ Disabled people are often unable to access or participate in public or private life because the means to do so are designed for able-bodied people. The result is that disabled people can, without any positive action, easily be pushed to the margins of society …” </li></ul>09/04/09 Page
  22. 22. 09/04/09 Page
  23. 23. 09/04/09 Page Freedom, Equality, Dignity
  24. 24. 09/04/09 Page
  25. 25. Labour Relations Act 1995 09/04/09 Page
  26. 26. Employment Equity Act of 1998 09/04/09 Page
  27. 27. Employment Equity Act of 1998 09/04/09 Page
  28. 28. SA VERENIGING VAN MUNISIPALE WERKNEMERS (NIE-POLITIEK) & 'N ANDER V VENTERSDORP MUNISIPALITEIT (1990) <ul><li>Industrial Court establishes ethical duty to treat incapacitated employees at dismissal fairly: </li></ul><ul><ul><li>&quot;A person's point of departure should be to treat others as you would wish to be treated in similar circumstances.&quot; [at 1170 B] </li></ul></ul><ul><ul><li>[Original text: &quot; 'n Mens se uitgangspunt behoort te wees om ander te behandel soos wat jy graag behandel sou wou word in derglike omstandighede.&quot;] </li></ul></ul>09/04/09 Page
  29. 29. SA VERENIGING VAN MUNISIPALE WERKNEMERS (NIE-POLITIEK) & 'N ANDER V VENTERSDORP MUNISIPALITEIT (1990) <ul><li>Industrial Court establishes ethical ethical obligation to not mistreat incapacitated employees: </li></ul><ul><ul><li>&quot;A person must be vigilant against treating people like inanimate work implements.&quot; [at 1170 C] </li></ul></ul><ul><ul><li>[Original text: &quot; 'n Mens moet daarteen waak om nie mense soos lewelose werktuie te behandel nie.&quot;] </li></ul></ul>09/04/09 Page
  30. 30. 09/04/09 Page
  31. 31. HOFFMAN V SOUTH AFRICAN AIRWAYS PAR 20 <ul><li>&quot;People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. They must not be condemned to 'economic death' by the denial of equal opportunity in employment.” </li></ul>09/04/09 Page
  32. 32. HOFFMAN V SOUTH AFRICAN AIRWAYS PAR 35 <ul><li>“… we must guard against allowing stereotyping and prejudice to creep in under the guise of commercial interests. The greater interests of society require the recognition of the inherent dignity of every human being, and the elimination of all forms of discrimination. Our Constitution protects the weak, the marginalised, the socially outcast, and the victims of prejudice and stereotyping. It is only when these groups are protected that we can be secure that our own rights are protected.” </li></ul>09/04/09 Page
  33. 33. STANDARD BANK V CCMA PAR 61 <ul><li>The Constitution, several statutes including the EEA and the LRA and Codes of Practice protect employees with disabilities as a vulnerable group because they are a minority with attributes different from mainstream society. </li></ul>09/04/09 Page
  34. 34. STANDARD BANK V CCMA PAR 61 <ul><li>“ Many employers tend to exclude and marginalise employees with disabilities not merely because the disability impairs the employee’s suitability for employment, but also because the employer regards the disability as an abnormality or flaw.” </li></ul>09/04/09 Page
  35. 35. STANDARD BANK V CCMA PAR 61 <ul><li>“ When the attitude that disability is the problem of the disabled individual, not society, that the workplace is hazardous for disabled people and that they need to be looked after combines with paternalism, charitableness, ignorance and misinformation about disabilities, the result is that more disabled people are dismissed than accommodated.” </li></ul>09/04/09 Page
  36. 36. STANDARD BANK V CCMA PAR 61 <ul><li>“ Some employers may find it more convenient to budget for a disability dismissal than to attempt to accommodate an employee. When these attitudes feature in decisions about people with disabilities, they can obscure innate prejudice, stereotyping and stigma. Able people are more inclined to bear such attitudes than disabled people.” </li></ul>09/04/09 Page
  37. 37. STANDARD BANK V CCMA PAR 65 <ul><li>Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  </li></ul><ul><li>A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.   </li></ul>09/04/09 Page
  38. 38. STANDARD BANK V CCMA PAR 65 <ul><li>Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium or psychological, emotional and physical elements of a person’s dignity and self-respect.” </li></ul>09/04/09 Page
  39. 39. STANDARD BANK V CCMA PAR 66 <ul><li>When employers accommodate employees effectively, they restore dignity to employees. Restoring the dignity of employees is also about returning the employee to the same job if possible. By returning Hoffman to his job as cabin attendant for South African Airways, the Constitutional Court aimed specifically at restoring his dignity.” </li></ul>09/04/09 Page
  40. 40. STANDARD BANK V CCMA PAR 80 <ul><li>“ Consequently, if an employer fails to reasonably accommodate an employee with disabilities, the dismissal of that employee is not merely unfair but automatically unfair . 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.” </li></ul>09/04/09 Page
  41. 41. STANDARD BANK V CCMA PAR 81 <ul><li>An employer cannot justify treatment of a disabled person that amounts to direct discrimination. </li></ul><ul><li>An employer also discriminates against a disabled person if it fails to make reasonable accommodation” </li></ul>09/04/09 Page
  42. 42. STANDARD BANK V CCMA PAR 84 <ul><li>“ Because it protects against automatically unfair dismissal, reasonable accommodation is more onerous than a general obligation to implement affirmative action. </li></ul><ul><li>Reasonable accommodation of people with disabilities is also more onerous than accommodating religious and cultural beliefs…” </li></ul>09/04/09 Page
  43. 43. STANDARD BANK V CCMA PAR 84 <ul><li>Practicing religious and cultural beliefs is a freedom whereas disability is an imposition. </li></ul>09/04/09 Page
  44. 44. STANDARD BANK V CCMA PAR 85 <ul><li>Another difference between an employer’s obligations to implement affirmative action and reasonably accommodate people with disabilities is that measures to affirm employees apply generally to all employees within the group, whereas to accommodate employees with disabilities the employer has to tailor modifications and adjustments for the specific disabilities of each employee .” </li></ul>09/04/09 Page
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