The Employment Equity Act of 1998 protects disabled people against unfair discrimination, and directs employers to implement measures to redress discrimination.
However, on one level, the law encourages employment of Persons with Disabilities and on another, states that incapacity due to disability is a ground for dismissal. This apparent contradiction has created the mistaken belief that disability is the same as incapacity, a confusion that still persists at the workplace. One reason is a remnant of the pre-1995 perception of so called “boarding”.
Before today’s equity-based systems, employment was based on the principle of common law contract of employment, and no other consideration. An employer paid for the employment service given by the employee. Failure of an employee to perform his/her duty as a result of disability was automatically taken as a breach of that contract. There were no considerations like workplace adjustment and reasonable accommodation before termination. The issue of fairness and whether the disabled person was able to perform the core function of the work was not the issue. The tendency was to “board” the person. The rules and principles have changed with the 1995 legislation on labour matters.
With the rise of the Disability Rights movement which advocated inclusion of disabled people in the workplace, this has changed. Now, the employee is entitled to a hearing or consultation before dismissal. The employer is obliged to provide reasonable accommodation and ensure that a disabled person would still find a position suitable for him/her within the employment environment.
The definition of disability is a well-understood concept. This article is mainly to demystify the concept of Incapacity and explain it in simpler terms.
Incapacity refers to the employee’s inability to carry out his/her job function and could include poor performance, ill health or injuries or disability. However, there is also the question of what ill health is. It can be defined as any form of debilitating sickness, illness, disease or injury which affects the employee’s performance, productivity and attendance. It can be temporary, permanent or recurring. Incapacity is broader than ill-health and specifically refers to an inability to carry out a job function.
Disability is a form of incapacity. However, it does not necessarily restrict an employee’s ability. A disabled person can be productive.
An employer only has the right to terminate employment on the grounds of incapacity if they can show; (a) good reason to do so, and (b) reasonable procedure has been followed.
In case of permanent disability, injury or illness, the employer must show;
Dismissal on the basis of disability can be tricky. For example, It may be viewed as differential treatment and a violation of the disabled person’s rights. If the only reason for dismissal is because of a disability and not whether they can do the job, then the dismissal will be unfair. Differential treatment becomes unfair when it cannot be justified when measured against the requirements of the job, or the operational requirements of the employer.
The following cases illustrate some anecdotal issues on Disability management.
Eskom had treated Junkowiski unfairly and inconsistently by offering him a lower grade position with reduction in salary following his disability, when other employees in similar circumstances were offered lower position without a reduction in salary. This particular conduct was regarded as unfair labour practice based on disability discrimination.
In another case, an employee was involved in a motor vehicle accident and could not continue with the specific work that she was assigned to do. On a doctor’s recommendation she was given an administrative position with light duties, but could not cope with using both the telephone and a computer. She applied for early retirement which was declined by the trustees of the Pension Fund. She then applied for a half-day position which the employer declined.
After two years of being unable to properly perform her duties, and being absent for a long time, the employer decided to terminate her employment. An award was granted against the employer because they did not investigate the case fully, and did not even attempt to accommodate the employee reasonably. Another reason was that they had not followed their own guidelines nor followed fair procedure.
The Courts and CCMA are sometimes very strict on interpretations of disability, and often don’t tolerate malingering. An employee of 29 years was dismissed for failure to obey an instruction to work on a machine. The employee alleged he had a disability and was physically unable to do as instructed. The employer contested it and proved that he had no knowledge of a medical condition or disability suffered by the employee. Consequently, the dismissal was regarded as fair.The Courts are also unsympathetic of employers who just put a blanket ban on employment of people regarded as disabled. A municipality refused to appoint a person as a fire fighter on the grounds that he was disabled as an insulin-dependant diabetic.
The Court considered the functions, duties and requirements of fire fighters, and the medical evidence of the nature and effect of treatment of diabetics. It concluded that modern advances in medicine required a different approach to diabetics and hazardous occupations. The Court ruled for the employee, on the grounds that his condition could be accurately controlled, so he could not be regarded as disabled under the Employment Equity Act.
Although there is not much precedence for disability cases, there are many on incapacity. I envisage more development here; the more cases we have, the more our disability jurisprudence will grow.