Disability Equity 1

Disability Equity
Introduction
Disability Equity Management
Context – The Constitution of the

Republic of South Africa
Constitution
• The Oxford English Dictionary defines

a constitution as "a body of
fundamental principles or
established precedents according to
which a state or organisation is
governed"
http://www.constitutionalcourt.org.za/text/
constitution/what.html
Page 3 12/08/21
Constitution
• The Collins dictionary says a

constitution consists of "the
fundamental principles on which a
state is governed, especially when
considered as embodying the rights of
subjects".
Page 4 12/08/21
Constitution
• “a kind of deal or contract

between those in power
and those who are
subjected to this power…”
Page 5 12/08/21
Constitution
• The South African Constitution
acknowledges this principle in
two ways:
–Constitutional supremacy
–Bill of Rights (Chapter 2)
Page 6 12/08/21
Bill of Rights
• “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”
Page 7 12/08/21
• human dignity
• equality ,and
• freedom
Page 8 12/08/21
Page 9 12/08/21
Bill of Rights – Very Clear
• Human dignity
Everyone has inherent dignity
and the right to have their
dignity respected and
protected
Page 10 12/08/21
• Freedom and security of the person

– “… not to be deprived of freedom
arbitrarily or without just cause…”
– “… to security in and control over their
body…”
Page 11 12/08/21
• Privacy
Everyone has the right to privacy, which
includes the right not to have-
• …the privacy of their communications
infringed.
Page 12 12/08/21
• Freedom of religion, belief and

opinion
• Freedom of expression
• Labour relations:
– Everyone has the right to fair labour
practices
Page 13 12/08/21
Page 14 12/08/21
FERREIRA V LEVIN NO AND OTHERS AND VRYENHOEK
AND OTHERS V POWELL NO AND OTHERS
– “Human 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.”
Page 15 12/08/21
DINGAAN HENDRIK NYATHI versus MEMBER OF THE
EXECUTIVE COUNCIL FOR THE DEPARTMENT OF HEALTH,
GAUTENG
• “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”
Page 16 12/08/21
MEC FOR EDUCATION: KWAZULU-NATAL versus
NAVANEETHUM PILLAY – PAR 71
• “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…”
Page 17 12/08/21
• 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
measuree…”
Page 18 12/08/21
• “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”
Page 19 12/08/21
• “The idea extends beyond religious

belief. Its importance is particularly
well illustrated by the
application of reasonable
accommodation to disability
law…”
Page 20 12/08/21
• “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…”
Page 21 12/08/21
Page 22 12/08/21
Freedom, Equality, Dignity
Page 23 12/08/21
Page 24 12/08/21
Labour Relations Act 1995
Page 25 12/08/21
Employment Equity Act of 1998
Page 26 12/08/21
Employment Equity Act of 1998
Page 27 12/08/21
SA VERENIGING VAN MUNISIPALE
WERKNEMERS (NIE-POLITIEK) & 'N ANDER V
VENTERSDORP MUNISIPALITEIT (1990)
• Industrial Court establishes ethical duty to treat

incapacitated 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 wou word in derglike
omstandighede."]
Page 28 12/08/21
SA VERENIGING VAN MUNISIPALE
WERKNEMERS (NIE-POLITIEK) & 'N ANDER V
VENTERSDORP MUNISIPALITEIT (1990)
• Industrial Court establishes ethical

ethical obligation to not mistreat
incapacitated employees:
– "A person must be vigilant against
treating people like inanimate work
implements." [at 1170 C]
– [Original text: " 'n Mens moet daarteen
waak om nie mense soos lewelose
werktuie te behandel nie."]
Page 29 12/08/21
Page 30 12/08/21
HOFFMAN V SOUTH AFRICAN AIRWAYS PAR 20
• "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.”
Page 31 12/08/21
HOFFMAN V SOUTH AFRICAN AIRWAYS PAR 35
• “…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.”
Page 32 12/08/21
STANDARD BANK V CCMA PAR 61
• 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.
Page 33 12/08/21
• “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.”
Page 34 12/08/21
• “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.”
Page 35 12/08/21
• “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.”
Page 36 12/08/21
• 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.
• A person’s employment is an essential
component of his or her sense of
identity, self-worth and emotional well-
being.
Page 37 12/08/21
• 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.”
Page 38 12/08/21
• 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.”
Page 39 12/08/21
• “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.”
Page 40 12/08/21
• An employer cannot justify treatment

of a disabled person that amounts to
direct discrimination.
An employer also discriminates
against a disabled person if it fails
to make reasonable
accommodation”
Page 41 12/08/21
• “Because it protects against automatically

unfair dismissal, reasonable
accommodation is more onerous than a
general obligation to implement
affirmative action.
• Reasonable accommodation of people
with disabilities is also more onerous
than accommodating religious and
cultural beliefs…”
Page 42 12/08/21
• Practicing religious and cultural

beliefs is a freedom whereas
disability is an imposition.
Page 43 12/08/21
• 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.”
Page 44 12/08/21
Page 45 12/08/21
Page 46 12/08/21
Page 47 12/08/21

Disability Equity 1

Transféré par

Informations du document

Description originale:

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Disability Equity 1

Transféré par

Droits d'auteur :

Formats disponibles

Disability Equity

Context – The Constitution of the

• The Oxford English Dictionary defines

• The Collins dictionary says a

• “a kind of deal or contract

• “This Bill of Rights is a cornerstone of

• Freedom and security of the person

• Freedom of religion, belief and

– “Human dignity has little value

• “In a state that has pledged itself to redeem

• “Before considering the fairness of the

• The concept of reasonable accommodation is

• “But what is the content of the principle? At

• “The idea extends beyond religious

• “Disabled people are often unable to

• Industrial Court establishes ethical duty to treat

• Industrial Court establishes ethical

• "People who are living with HIV must

• “…we must guard against allowing

• The Constitution, several statutes

• “Many employers tend to exclude

• “When the attitude that disability is the

• “Some employers may find it more convenient

• Work is one of the most fundamental aspects

• Accordingly, the conditions in which a

• When employers accommodate

• “Consequently, if an employer fails to

• An employer cannot justify treatment

• “Because it protects against automatically

• Practicing religious and cultural

• Another difference between an employer’s

Vous aimerez peut-être aussi