The Protective Role of the Reasonable Accommodation Principle in the Dismissal of Employees with Disabilities in South Africa
DOI:
https://doi.org/10.25159/2520-9515/17600Keywords:
disability, employee, incapacity, reasonable accommodation, unfair discrimination, undue hardship, dismissalAbstract
South Africa’s current labour law aims to redress the apartheid government’s discriminatory system, including the discrimination against people with disabilities. In South Africa, many persons with disabilities still suffer the indignity of unfair dismissals due to their disability, despite their constitutional rights to equality and fair labour practices. However, the right not to be unfairly dismissed, enshrined in the Labour Relations Act 66 of 1995, must also be considered within the practical realities of the employers’ operational needs. This is broadly known as the principle of reasonable accommodation. Reasonable accommodation ensures that persons with disabilities are properly accommodated in the workplace and safeguarded against arbitrary dismissals because of their disability. It further provides an opportunity for these employees to carry out their normal duties, in accordance with their job requirements, with minimal challenges. However, if reasonable accommodation measures are exhausted and dismissal becomes inevitable, dismissal must comply with the requirement of fairness. The Employment Equity Act 55 of 1998 (EEA), augmented with the Code of Good Practice on Employment of Persons with Disabilities, establishes the principle and measures of reasonable accommodation. This ensures barriers faced by employees with disabilities are reduced or eliminated, thus minimising the chances of dismissals. However, the protective role of reasonable accommodation, as evident from judicial interpretation, requires legislative and policy development to meet the needs of persons with disabilities fully. This paper explores the role of reasonable accommodation in protecting employees with disabilities from dismissals by primarily focusing on the EEA and relevant case law.
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