I’ve recently had a number of enquiries on the topic of discrimination based on a disability and have decided to devote today’s column to this issue.

This type of discrimination opens up a number of aspects that need to be dealt with circumspectively.

These include the question of injury on duty, how onerous the burden on the employer is to accommodate an employee that was injured at work; the nature of the incapacity process; operational requirements; and the spectre of unfair discrimination based on an employee’s disability.

I will focus on the last aspect in this article.

Section 187 of the Labour Relations Act (LRA), 1995, provides that “a dismissal is automatically unfair . . . if the reason for the dismissal is . . . (1)(f) that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.”

Section 6(1) of the Employment Equity Act (EEA), 1998, provides the same protection to employees.

Discrimination itself is nothing else than differentiation or distinguishing one thing from another, and it is not necessarily unfair.

For example, an employer can choose to retrench employees based on their length of service. Thus to dismiss an employee on the basis of his failing health or advanced years or a serious disability need not necessarily be unfair.

Employees claiming to have been unfairly discriminated against must prove two things: firstly, that they were discriminated against – directly or indirectly; and secondly, that the discrimination was unfair.
In defence, the employer may argue that a dismissal based on grounds that could seem discriminatory or unfair, may be justified on the basis that such characteristics render a person unsuitable for particular work.

This is recognised by one of the qualifications in section 187(2) of the LRA, which indicates that “despite section 187(1)(f), a dismissal may be fair if the reason for dismissal is based on an inherent requirement of the particular job . . .”

This justification is in part related to the employee’s capacity and in part the operational requirements of the employer. The employer will have to prove that there is a close relationship between the lack of particular attributes of the employee and the nature of the job.

The lack of a certain characteristic must clearly render employees unfit for some essential aspect of their work or their ability to perform an essential function.

And therein lies the rub!

Generally, people would believe that a person who has lost his legs or the use thereof would not be able to pilot an aircraft or become a champion sprinter. However, Douglas Bader (in World War II) and Oscar Pistorius have defied that notion.

Employers will be well-advised to familiarise themselves with the Code of Good Practice: On the Employment of People with Disabilities contained within the EEA.

Herein people with disabilities are defined as “people who (1) have a physical or mental impairment; (2) which is long term or recurring; and (3) which substantially limits their prospects of entry into, or advancement, in employment”.

Each of these criteria is extensively explained in the Code.

It also deals with reasonable accommodation for people with disabilities, referring to “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have reasonable access to or participate or advance in employment”.

Send your labour and other workplace related questions to coetzee@fullstopcom.com.

Robert Niemand from LabourNet in Port Elizabeth is a labour law consultant. He is also a part-time commissioner at the CCMA, a labour law and labour relations lecturer and a contributor to various publications.

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