Payday: Business as usual or a new dawn rising for persons with disabilities in the workplace
Ilze Grobbelaar-du Plessis
B Iuris LLB LLM LLD
Senior Lecturer Department of Public Law, University of Pretoria

Jehoshaphat John Njau
LLB LLM
Disability Rights Project Coordinator, Centre for Human Rights, University of Pretoria

SUMMARY
The article examines and clarify the legal obligations of labour market (as part of mainstream society) to effectively promote and protect the right to employment for persons with disabilities in South Africa. In this regard the article contextualises the understanding of disability within an international and national context by outlining the legal obligations of employers under the Convention on the Rights of Persons with Disabilities (CRPD), the South African national legal framework and policy directives pertaining to the right to employment of persons with disabilities. The article submits that the success of realising the right to employment and work of persons with disabilities will only be measured through the implementation of international obligations, the national legal framework and policy directives. In order to measure the progress in realising the right to work of persons with disabilities, the importance of collecting and maintaining disability data as statistical evidence is highlighted.

1 Introduction
Multiple barriers hinder persons with disabilities to obtain employment and enjoyment of full and effective participation in the labour market on an equal basis with others. In the South Africa context and generally reflective of the trend worldwide, persons with disability experience high
levels of unemployment and often remain in low status jobs.1 This stark reality is the result of the interplay between a number of factors,2 such

National Development Plan 2030 Our future – make it work (2012) 382; Eide and Loeb “Data and statistics on disability in developing countries” 2005 Disability Knowledge and Research Programme 8; Report of the South African Human Rights Commission (SAHRC) National Hearing on Unfair Discrimination in the Workplace (8 March 2016 and 25 April 2016) launched 23  November  2017  50 & 51.

How to cite: Grobbelaar-du Plessis & Njau ‘Payday: Business as usual or a new dawn rising for persons with disabilities in the workplace’ 2019 De Jure Law Journal 267-294
http://dx.doi.org/10.17159/2225-7160/2019/v52a17

Report of the South African Human Rights Commission (SAHRC) National Hearing on Unfair Discrimination in the Workplace (2017) 47 and SAHRC Promoting the Right to Work of Persons with Disabilities: Toolkit for the Private Sector (2015) 8.

as access to education and other forms of training and skills development, reasonable accommodation measures in the  workplace, lack of accessibility to infrastructure, information and technology, lack of
effective enjoyment of the right to legal capacity, as well as attitudinal barriers in the South African society.3 Whilst it is true that unemployment  remains  a  fundamental  problem  across  the board,4
unemployment disproportionately affects the majority of persons with disabilities.5
It is against this backdrop that this article seeks to examine and clarify the legal obligations of the labour market as part of mainstream society to effectively promote and protect the right to employment for persons with disabilities in South Africa. The first part of the article contextualises the understanding of disability within an international and national context. The second part of the article outlines the legal obligations of employers under the Convention on the Rights of Persons with Disabilities (CRPD), the national legal framework and policy directives pertaining to the right to employment of persons with disabilities. The discussion fosters an understanding of the right to employment of persons with disabilities in general and more particular to ensure that labour market have a clear understanding of the nature of their legal obligations. Finally, the article submits that the success of realising the right to employment and work of persons with disabilities will be measured through the implementation of international obligations, the national legal framework and policy directives. Progress with the implementation can only be measured through monitoring and evaluation processes. In this regard, the article highlights the importance of collecting and maintaining disability data as statistical evidence to measure progress in realising the right to work and employment.

2 Contextualising the understanding of disability
During the course of the past thirty years, views on disability have gradually shifted emphasis from a medical model to a social model of disability (and the more recent human rights model of disability).6 This
shift is of extreme significance when one considers the fact that the medical  model  and  social  model  of  disability  represent  two opposite

3	SAHRC (2015) 8.
According to Statistics South Africa there was a decline of 48 000 jobs (0,5%) to 9 644 000 in South Africa in the formal non-agricultural sector in the  first  quarter  of  2017   alone  available  at    http://www.statssa.gov.za/
?p=10136 (accessed 2017-07-04).
According to Quarterly Labour Force (4) 2016 Statistics South Africa the number of persons with disabilities who are not economically active in South Africa stood at 1 611 000 in 2016.
Degener “A Human Rights Model of Disability” in Blanck and Flynn  (eds)
The Routledge Handbook of Disability Law and Human Rights (2017)  47.

approaches to disability.7 The shift also relates to activities at the international   level   where   the   United   Nations   has   developed     a
comprehensive human rights system subsequent to the Second World War.8  A  greater  international  awareness  of  human  rights  and human
needs has also given rise to this shift in how persons with disabilities are viewed. In response to this growing awareness and the international community’s realisation that continued denial of human rights and discrimination,   exclusion   and   dehumanisation   of   persons   with
disabilities was no longer acceptable,9 the United Nation’s General
Assembly, to this end, adopted the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol.10
The social model of disability,11 recognises that disability is caused by the way in which society’s physical and social environment is organised,12 which significantly contributed and paved the way to having
disability fully recognised as a human rights issue, as opposed to the medical model that presumes that a person is disabled by his physical impairment,   requiring   an   individualised   medical   solution     and
dependence on the  non-disabled.13
Unfortunately   approaches   and   attitudes   towards,   as   well  as
perceptions about persons with disabilities in the workplace, still reflect the  out-dated  medical  model  of  disability.14  This  is  evident  in    the
interpretation(s) of disability and unfair labour practices against   persons

Grobbelaar-du Plessis and Van Reenen “Introduction to aspects of disability law in Africa” in Grobbelaar-du Plessis and Van Reenen Aspects of disability law in Africa (2011) xxiii.
Malan “’n Kritiese evaluering van menseregte as eietydse globale politieke- juridiese verskynsel” 2003 (43) 1 & 2 Tydskrif vir Geesteswetenskappe 94; Strydom and Grewers “Defining epochs” International Law (2016) 4.
United Nations From Exclusion to Equality – Realizing the rights of persons with disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (2007) foreword   iii.
A/RES/61/106 adopted by the General Assembly on 13 December 2006 and opened for signature on 30 March 2007.
The social model of disability holds that disability is not primarily due to some or other condition inherent in the particular person, but to the manner in which the physical and social environment within which such person must operate has been arranged. In essence society must be rearranged to accommodate everybody - including persons with disabilities
– on an equal footing. Disability viewed against the backdrop of the social model of disability is an evolving concept, and results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others. See Grobbelaar-du Plessis and Van Reenen (2010) xxv.
12    SAHRC (2017) 47.
Degener “Disability in a Human Rights Context” 2016 Laws 5(3) 35.
The medical model of disability holds that disability is primarily viewed as a health and welfare issue. The emphasis was placed on the physical or psychological nature of the impairment and the dependence of the person with a disability on the non-disabled. The view that disability was a health and welfare issue gave rise to an attitude amongst members of society   that

with disabilities in practice.15 According to  the  2017  South  African  Human Rights Commission’s (SAHRC) report on the National Hearing on Unfair Discrimination in the Workplace, social attitudes and stigmatisation
of persons with disabilities remain prevalent in modern-day South Africa.16 It is for this reason that both public and private sector employers should take note of existing social attitudes and stigmatisation
geared towards achieving and maintaining very specific physical characteristics of people. Portraying persons with disabilities as sick, weak or incapable of caring for themselves tends to marginalise persons
with disabilities as non-productive and unequal members of the South African society.17
Both the public and private sector employers should take note of the differences between the models of disability and view persons with disabilities against the backdrop of the social model and the more  recent
human rights model of disability.18 Degener argues that the  human rights model of disability goes beyond the social model of disability and acts as a tool to implement the obligations imposed by the CRPD.19
3 International legal framework: Obligations imposed by article 27 of the CRPD
The CRPD has domestic constitutional significance for South Africa.20 Public   and   private   sector   employers   should   take   note   of     the
understanding of disability and the obligations imposed by the CRPD, since the duties imposed on both sectors, 21 stem from international obligations (amongst others the CRPD), the Constitution of the Republic
of South Africa, 1996 (the Constitution) and South African labour laws.22

persons with disabilities (and their families) were  separate  from  mainstream communal activities, including the labour market. Their dependency on state assistance disempowered these people and  undermined their self-confidence and capacity to interact on an equal level with colleagues in the working environment, and elsewhere with other members of society. See Grobbelaar-du Plessis and Van Reenen (2010)  xxiii

14

– xxiv; Integrated National Disability Strategy White Paper Office of the Deputy President, November 1997, available at http://www.gov.za/sites/ www.gov.za/files/disability_2.pdf (2017-02-04); SAHRC (2017) 50.
15    SAHRC (2017) 49 - 51.
16    SAHRC (2017) 50.
17    SAHRC (2017) 50.
Degener “Disability in a Human Rights Context” 2016 Laws 5(3) 35.
Degener in Blanck and Flynn (2017) 47.
See n 10 above. South Africa signed and ratified the CRPD on the 30th of November 2007.
Art 27(1)(e); (g) and (h) of the CRPD.
See para 4 2.

The right to work is a fundamental right, recognised in several international legal instruments, such as the ILO Conventions.23 Article 27
of the CRPD, one of the most detailed and significant articles of the CRPD, restates the right to work from a disability perspective. This provision of the CRPD sets the basis for building a society in which persons with disabilities are free from marginalisation and stigma and hence, free of discrimination in employment. This means that persons with disabilities in South Africa are part of society and included in community life as socio-economically active  citizens.
Article 27 directs the public sector, in collaboration with the private sector, to undertake a large variety of measures to ensure the promotion of the rights to work and earn a living: to choose a job;24 not to be treated
unfairly when employed;25 to receive equal pay for equal work done just like everyone else;26 to benefit from equal opportunities and safe and healthy  working  conditions  just  like  everyone  else;27  to  be  able    to
complain and to join labour and trade unions and not be harassed;28 to provide  them  with  career  counselling,  vocational  trainings  and career
opportunities;29 to promote self-employment and business opportunities;30 to have the possibility to be hired both in the public and in the private sector;31 to ensure that reasonable changes are made in the
workplace environment, that is, fulfil the reasonable accommodation principle according to their personal needs;32 and to promote vocational and professional rehabilitation programmes to support their return to
work.33 South Africa, as a state party to the CRPD, is bound to these obligations and has to ensure that the right to employment and work of persons with disabilities are protected, promoted and  fulfilled.
It is important to note that the provisions on work and employment in article 27 of the CRPD protect persons with disabilities in all stages of employment.34 The South African government should therefore -  when
formulating policies and programmes – provide for, and include protection    for    those    seeking    employment,    those    advancing in

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Forced Labour Convention, 1930 (No. 29);  Abolition of Forced Labour Convention, 1957 (No. 105); Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182); Equal Remuneration Convention, 1951 (No. 100); and Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
Art 27(1) of the CRPD.
Art 27(1)(a) of the CRPD.
Art 27(1)(b) of the CRPD.
Art 27(1)(b) of the CRPD.
Art 27(1)(c) of the CRPD.
Art 27(1)(d) and (e) of the CRPD.
Art 27(1)(f) of the CRPD.
Art 27(1)(g) and (h) of the CRPD.
Art 27(1)(i) of the CRPD.
Art 27(1)(k) of the CRPD.
Art 27 of the CRPD.

employment, and those who acquire a disability during employment and who wish to retain their jobs.

4 South Africa’s progress in implementation of article 27 of the CRPD
All legally binding international human rights treaties, including the CRPD, have monitoring mechanisms to foster accountability by state parties,  and  to  ensure  that  they  fulfil  their  commitments        and
obligations.35 According to article 35 of the CRPD, a state party must submit a comprehensive report on measures taken to give effect to its obligations and on the progress made in that regard, within two years
after the entry into force of the CRPD.36 South Africa submitted its initial state party report to the CRPD’s Committee towards the end of 2014,37 and expects consideration of the report towards the end of  2018.
The CRPD requires government to “take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization  or  private  enterprise”.38  This  includes  providing  for
reasonable accommodation measures,39 and to promote policies and programmes, including affirmative action,40 that encourage employers   to   recruit   persons   with   disabilities.41   To   enable   governments  to
formulate and implement these policies and programmes, article 31 of the CPRD provides for governments to undertake the collecting of appropriate information, including statistical and research   data.42
Statistics regarding persons with disabilities,43 provide the basis for measuring progress in realising the rights to work and employment. Progress captured through statistics and data has to be reported in both

United Nations “From Exclusion to Equality – Realizing the rights of persons with disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol” (2007) 25.
The CRPD entered into force on May 3, 2008.
Committee on the Rights of Persons with  Disabilities,  consideration  of reports submitted by States parties under article  35  of  the  Convention “Initial reports of State parties due in 2009 South Africa” CRPD/C/ZAF/1 23 November 2015 (Initial country report); South Africa South Africa Baseline Country Report: UN Convention on the Rights of Persons with Disabilities 2013.
Art 4(1)(a) & (e) of the CRPD.
Art 27(1)(i) of the CRPD.
Art 27(1)(h) of the CRPD.
United Nations From Exclusion to Equality – Realizing the rights of persons with disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (2007)    87.
See para 4 1.
Schneider The social life of questions: Exploring respondents' understanding and interpretation of disability measures (PHD dissertation 2012 University of  Witwatersrand) 1.

the comprehensive initial state party report44 and subsequent reports,45  in order to measure the progress made in realising the right to work. It is for this reason that the CRPD recognising the importance to collect and maintain data on disability to enable formulation of policies that will
facilitate implementation and monitoring of state parties  compliance with the Convention.46
4 1   Prevalence of disability in South Africa
South Africa has recognised the importance of statistics when measuring progress in current  and future policies interventions to  ensure that    its
people have equal access to education, employment and basic services.47 The South African census reports of 1996, 2001 and  2011
provided information for government to monitor and enhance national priorities and public debate in resolving unemployment faced by  amongst other persons with disabilities in South  Africa.48
In the last census of 2011, a report was drawn out by Statistics South Africa  (StatsSA),49  which  provided  statistical  evidence  relating  to the
prevalence of disability and characteristics of persons with disabilities at both individual and household levels.50 The 2011 census was different from the 1996 and 2001 census reports in that, the method applied in
the 2011 census included questions on disability that were used to improve and enhance disability specific statistics.51 The questions of the 2011 census were formulated from the Washington Group (WG) short set
of questions.52 The WG method focused on degree of difficulty in a

Art 31(1) of the CRPD.
Art 31(2) of the CRPD.
Art 31 of the CRPD determines that states parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention.
Statistics South Africa (as mandated in the Statistics Act 6 of 1999) has conducted three censuses (in 1996, 2001 and 2011) as  well  as  various annual household-based surveys. “Census 2011: Profile of persons with disabilities in South Africa” 2011 Statistics South Africa is available at http:// www.statssa.gov.za/publications/Report-03-01-59/Report-03-01-592011.pdf.
Department of Social Development White Paper on the Rights of Persons with Disabilities (WPRPD) (2015) 109; National Planning Commission in the Presidency’s Our future – make it work. National Development Plan: Vision 2030  (March 2012) 368.
State agency responsible for the collection, production and dissemination   of official and other statistics, including conducting of population census, and for co-ordination among producers of statistics.
Statistics South Africa Census 2011: Profile of persons with disabilities in South Africa (2011).
Schneider 69.
Schneider 69; The WG short set of questions is a method based on activity limitations and restrictions in social participation, with the aim of producing prevalence measures that are internationally comparable.

specific function domain and the disability index.53
The 2011 census report indicated that persons with disabilities constituted 7,5% of the total population of South Africa.54 Black   South
Africans had the highest proportion of persons with disabilities (7,8%), followed by white South Africans (6,5%).55 However, no variations were
observed among the coloured, Indian or Asian population groups. The data furthermore showed that disability is more prevalent among females   than   males   (8,3%   and   6,5%   respectively).56 Provincial
variations showed that the Free State and the Northern Cape provinces had the highest proportion of persons with disabilities (11%), followed by North West and Eastern Cape (10% and 9,6% respectively). The Western
Cape and Gauteng provinces showed the lowest percentage of persons with disabilities (5%).57 This means that disability is more prevalent in rural provinces, suggesting a link to poverty and lack of access to
adequate transportation, healthcare and other essential services.58
Statistics have further shown that there is a correlation between the degree of severity of the impairment, and the degree of economic participation in South Africa. More severe impairments are being associated   with   a   decrease   in   labour   market   participation      and
employment.59 This means that employment levels were recorded to be
the highest among persons with less severe impairments, and lowest among persons with severe impairments across all provinces and sectors.60  The  severity  of  impairment  therefore  greatly  affects the
economic outcomes pertaining to employment in South Africa.
Different population groups are also affected differently. According to the 2011 census, the profile of persons with mild and severe disabilities shows how the latter are disadvantaged, particularly amongst the black
and coloured population groups, compared to other population groups.61 The 2011 census further recorded that the white population group have the highest proportions of employed persons with disabilities, while the
black population group had the lowest proportions across all impairments and degrees of difficulty experienced.62
The initial state party report of South Africa (initial country report) noted the interrelatedness of disability, employment and poverty, which

The domains are seeing, hearing, mobility (lower body – walking or climbing stairs), cognition (remembering and concentrating), self-care (washing and dressing) and communication in one’s usual language.
Statistic South Africa (2011) 60.
Statistic South Africa (2011) 60.
Statistic South Africa (2011) 60.
Statistic South Africa (2011) 57. 58  SAHRC (2017) 48.
Statistics South Africa (2011) 116 and Department of Social Development (2015)  25.
Statistics South Africa (2011) 121.
Statistics South Africa (2011) 60; Department of Social Development (2015) 25.
Statistic South Africa (2011) 60.

was articulated in South Africa’s National Development Plan (NDP).63 The NDP states that disability and poverty operate in a vicious circle and that persons with disabilities face multiple discriminatory barriers. The
NDP directs that persons with disabilities must have enhanced access to quality education and employment. 64 The initial country report recognises   that   efforts   to   ensure   relevant   and   accessible skills
development programmes for persons with disabilities, coupled with equal opportunities for their productive and gainful employment, has  to
be prioritised.65
In order to fulfil the NDP’s directive to enhance access to quality education for persons with disabilities and employment in the labour market, accurate and available information regarding the nature and prevalence of disability is required. However, the initial country report recognises the lack of adequate, reliable and relevant information on  the
nature and prevalence of disability.66 Government further  recognises
that the disaggregation of disability-related statistics and data, including the reliability of such data across all government institutions remains problematic.67 In order to address government’s obligation to collect
appropriate statistical and research data,68 the initial report   confirms
that corrective measures had been taken to mainstream disability into government’s various research and evaluation projects.69
The SAHRC found in their 2017 report on unfair discrimination in the
workplace that there is a low labour marked absorption of persons with disabilities across all sectors in South Africa.70 The report indicated that
only 1,2% of persons with disabilities participated in the labour market.71 This figure decreased over the last financial year, suggesting
that a number of persons with disabilities left the labour market.72 However, the SAHRC report suggests that the availability of accurate data
on disabilities is limited.73 This prevents proper assessment of the progress made in realising the rights of persons with disabilities.74
Given this background government embarked upon reporting on the progress made and measures taken in implementing the right to work and employment. However, it is important to note that consistent measures should be in place to record the persistent challenges in

National Planning Commission in the Presidency’s (2012) 52.
Initial country report CRPD/C/ZAF/1 para 6.
Initial country report para 6.
Initial country report para 6.
Initial country report CRPD/C/ZAF/1 para AA 394.
Art 31 of the CRPD.
Initial country report CRPD/C/ZAF/1 para AA 395.
SAHRC (2017) 50; South Africa South Africa Baseline Country Report (2013) 56.
South Africa South Africa Baseline Country Report (2013) 56. 72     SAHRC (2017) 50.
Initial country report CRPD/C/ZAF/1 para 1 and 23; SAHRC (2017) 48.
Art 31 of the CRPD.

realisation of the right to work and employment75 through collecting and maintaining disability data. This will enable government to evaluate
progress made in realising their rights and to formulate and implement policies that give effect to the obligations imposed by the CRPD.76
4 2  Constitutional framework
In reporting on the progress and measures taken in implementing the CRPD, the initial country report refer to the Constitution, which ensures an environment conducive to full and equal participation of men, women and children with disabilities in society, including equal access to opportunities, accessibility and protection of the inherent dignity of   the
person.77
The initial report in particular refer to the Bill of Rights in the Constitution,78 as the cornerstone of democracy,79 which binds all government institutions and the courts,80 in order to protect all people in South Africa.81 The Bill of Rights, therefore, inter alia protects the right to dignity of persons with disabilities,82 their right to equality,83 and their right to bodily and psychological integrity.84 Every person with a disability further has a right to privacy,85 to freedom of expression,86 association,87 movement and residence,88 as well as a right to choose a trade, occupation or profession freely.89 Persons with disabilities further have a right to fair labour practices,90 health care,91 education,92 and access to courts.93 However, these rights and others may be limited in

Art 27 of the CRPD.
Art 21 of the CRPD.
Initial country report CRPD/C/ZAF/1 para 288.
Initial country report CRPD/C/ZAF/1 Implementation of the general principles  and  obligations  para 27.
S 7(1) of the Constitution.
S 8(1) of the Constitution.
S 8(2) - (3) of the Constitution determine that the Constitution is binding and applicable to natural persons including persons with disabilities. The word “everyone” used in a number of provisions includes citizens and non- citizens, and is sufficiently comprehensive to include persons with disabilities. See Grobbelaar-du Plessis and Van Eck “Protection of disabled employees in South Africa: An analysis of the Constitution and Labour Legislation” in Grobbelaar-du Plessis and Van Reenen (eds) Aspects of disability law in Africa (2011) 237; Currie & De Waal The Bill of Rights Handbook (2014) 34-35; and Mohammed v President of the Republic of South Africa 2001 3 SA 893 (CC).
S 10 of the Constitution.
S 9 of the Constitution.
S 12(1) of the Constitution.
S 14 of the Constitution.
S 16 of the Constitution.
S 18 of the Constitution.
S 21 of the Constitution.
S 22 of the Constitution.
S 23 of the Constitution.
S 27 of the Constitution.
S 29 of the Constitution.
S 34 of the Constitution.

terms of section 36 of the Constitution,94 to the extent that such limitation is reasonable and justifiable in an open and  democratic  society.
The Constitution, and more specifically the right to equality,95 and the right to fair labour practices,96 contained in the Bill of Rights, could
potentially affect labour law in three ways. Firstly, the rights contained in the Bill of Rights could be applied to test the validity of labour legislation aimed at compliance with fundamental rights. Secondly, they could be employed to interpret existing labour legislation, which has been promulgated in compliance with the fundamental rights contained in the Bill of Rights. In this regard when interpreting the legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law, to any alternative interpretation that  is
inconsistent with international law.97 Finally, the rights could be used as
a tool to develop the common law in those instances where compliance with any particular human right is not at stake.98
In terms of section 9(1) “everyone” – including workers and/or employees with a disability – are equal before the law and have the right to equal protection and equal benefit of the law. Section 9(2) further provides that equality include the full and equal enjoyment of all rights and freedoms. This means that a worker or an employee with a disability has equal right to work, to be economically active and to be part of
mainstream society. The section further provides that legislative (such as equality,99 and labour legislation),100 and other measures designed  to
protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination, may be taken in order to promote and achieve equality.101 The national legislature introduced specific measures in the Employment Equity Act (EEA),102 to protect persons with disabilities, in
particular, as a designated group for purposes of equal treatment and affirmative action.103
Furthermore, section 9(3) provides that the state may not unfairly discriminate directly or indirectly against anyone on one or more of the listed grounds including disability. Of importance to the private sector

S 36 of the Constitution, the limitation clause.
S 9 of the Constitution.
S 23(1) of the Constitution.
S 233 of the Constitution.
Grobbelaar-du Plessis and Van Eck (2011) 238; and Van Niekerk et al 34; SA National Defence Union v Minister of Defence [2007] 9 BLLR 785 (CC) confirmed NAPTOSA v Minister of Education, Western Cape 2001 2 SA 112 (C); Minister of Health v New Clicks SA (Pty) Ltd 2006 2 SA 311 (CC) in this regard.
Promotion of Equality and Prevention of Unfair Discrimination (PEPUDA) Act  4 of 2000.
Employment Equity Act (EEA) Act 55 of  1998.
Van Jaarsveld and Van Eck Kompendium van Arbeidsreg (2006) 137. 102   Act 55 of 1998.
103 See the discussion of the Employment Equity Act 55 of 1998 (EEA) and affirmative action.

are the provisions of section 9(4), which determine that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 9(3). This section, therefore, also prohibits any other person, including private individuals and institutions such as employers from the private sector, from discriminating unfairly against workers with disabilities on one or more of the listed grounds. Section 9(4) requires that “national legislation must be enacted to  prevent or prohibit unfair discrimination”. For this purpose,    legislation
enacted by the national legislature includes the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA),104 and the
EEA.105 Of importance to labour market is section 9(5) of the Constitution, which provides that discrimination on one or more of  the
grounds listed in subsection 9(3) is unfair unless it is established that the discrimination is fair. In terms of this provision, discrimination based on disability in the workplace is unfair, unless it has been established that such discrimination is fair because of, for instance, valid inherent requirements for the work  concerned.
Labour market has to take cognisance of unfair discrimination as the Constitutional Court, in Harksen v Lane,106 has set out the factors that have to be taken into account in determining    whether discrimination is
unfair or not.107 Harksen also formulated the stages in which an enquiry into alleged unequal treatment and unfair discrimination must proceed.108  However,  in  both  Harksen,109  and  Prinsloo  v  Van der
Linde,110 the determining factor, which rendered the discrimination unfair, was the impact it had on the person against whom the discrimination  was  inflicted.111  It  follows  that  labour  market  should
guard against unfair discrimination and should implement safeguards against unfair discrimination of employees or persons with   disabilities.

104  Act 4 of 2000.
105 See the discussion of the EEA in para 4 3 1. 106   1998 1 SA 300 (CC) para 52.
The same factors were taken into account in WH Bosch v The Minister of Safety and Security & Minister of Public Works Case no. 25/2005 9, where persons with disabilities had no access to the first floor of the police station where they had to apply for firearm licences. The factors laid down in Harksen played an important role when the equality courts had to determine whether there was unfair  discrimination.
Harksen v Lane 1998 1 SA 300 (CC) para 53, which was confirmed in National Coalition for Gay & Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) para 17. See Grobbelaar-du Plessis and Van Eck (2011) 242 – 246; Carpenter “Equality and non-discrimination in the new South African constitutional order: the early cases – part 1” (2001) Tydskrif vir Hedendaagse Romeins-Hollandse Reg (THRHR) 409; “Equality and non- discrimination in the new South African constitutional order: important  trilogy of decisions – part 2” (2001) THRHR 619; “Equality and non- discrimination in the new South African constitutional order: the sage continues – part 3” (2002) THRHR 37; “Equality and non-discrimination in the new South African constitutional order: update – part 4” (2002) THRHR 177.
109  1998 1 SA 300 para 51.
110    1997 6 BCLR 759 (CC) para 32.
Grobbelaar-du Plessis and Van Eck (2011) 246.

Section 23(1) of the Constitution guarantees everyone’s right to fair labour practices. From this provision, it is clear that every employee,
employer, or other organisation or institution involved in labour relations has the right to fair labour practices in terms of the Constitution.112 It  is
understood that employees with disability are also entitled to protection in terms of this provision.113
However, it is not appropriate for an aggrieved employee with disability   to   approach  the   courts   based  on   an  infringement  of  a
constitutional principle if subsequent legislation has already given effect to the relevant human right.114 The constitutional provisions of section 9 and   23(1)   do   however   play  a   significant   role  whenever  enabling
legislation – giving effect to a human right, such as the right to work of an employee with a disability – is being interpreted, and when the common law  has to be developed in absence  of existing    legislative
provisions that give effect to constitutional principles.115 To this end, the Constitutional provisions regarding interpretation,116 and application of international law,117 must also be considered.
The initial country report highlights the subsequent enabling legislation that gave effect to the right to work and employment.118 The
enabling legislation that established reasonable accommodation mechanisms and targets for the economic empowerment  of  persons with disabilities are:119 the Promotion of Equality and Prevention of
Unfair Discrimination Act (PEPUDA);120 the Labour Relations Act (LRA);121 the Employment Equity Act (EEA);122 together with the Code of Good Practice in the Employment of People with Disabilities and   its
accompanying Technical Assistance Guidelines on the Employment of Persons with Disabilities providing further guidelines for   employers;123

Idem 238; 246 and 254 and Van Jaarsveld and Van Eck (2006) 137.
NEHAWU v University of Cape Town 2003 ILJ 95 (CC) by 110H – 111A: “[t]he concept of fair labour practice is incapable of precise definition … [It should be] given content by legislation and thereafter be left to gather meaning … from the decisions of specialist courts and tribunals. … In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity based jurisprudence generated by the unfair labour practice provisions of the 1956 LRA [Labour Relations Act] as well as the codification of unfair labour practice in the LRA.”
See para 4 2.
Grobbelaar-du Plessis and Van Eck (2011) 246.
S 39(1)(b) of the Constitution.
S 233 of the Constitution.
S 9 and s 23(1) of the Constitution.
Initial country report CRPD/C/ZAF/1 para 288.
120 Act 4 of 2000. 121 Act 66 of 1995. 122  Act 55 of 1998.
123 The Code of Good Practice was published in terms of s 54 of the EEA in GG 23702 of 19 August 2002. In 2004 the Department of Labour issued additional guidelines in the “Technical Assistance Guidelines on the Employment of People with Disabilities” that must be read in   conjunction

and the Broad- Based Black Economic Empowerment Act.124
The following section examines the labour legislative measures that give effect to the obligations imposed in article 27 of the CRPD.
4 3 Implementation of article 27 of the CRPD through legislative measures
4 3 1  The Employment Equity Act 55 of 1998 (EEA)
Although the EEA is not a disability-specific piece of legislation, specific emphasis is placed on equity and the right to equal protection and benefit of the law, of inter alia, persons with disabilities. The EEA strives towards the attainment of two goals, namely, to prohibit unfair discrimination  and to promote the implementation of affirmative action measures to
eradicate inequalities that were institutionalised by previous political policies.125
The first goal of the EEA,126 broadly coincides with the principles of formal equality as enshrined in section 9(1), (3) and (4) of the Constitution    and    obligations    imposed    by    articles    4     (general
obligations),127 5 (equality and non-discrimination),128 and 27(1)(a),129
of the CRPD. Barriers such as ignorance, fear and stereotyping have resulted in unfair discrimination of employees or workers with disabilities. In this regard, section 6(1) of the EEA prohibits unfair discrimination in the workplace, which applies to all workers or employees,  job  applicants,  irrespective  of  the  size  of  the  employer’s

with the EEA and the Code of Good Practice. These guidelines were revised in June 2017 and are practical in nature, and based on the prohibition of unfair discrimination and affirmative action measures. See para 4 3 1 2 in this regard.

123

124  Act 53 of 2003.
S 2(b) of the EEA.
Chapter II of the  EEA.
The general obligations imposed by article 4 of the CRPD determines that States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake (a) to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the present Convention; (c) to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise;
(f) to undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines.

undertaking.130 It provides that everyone, including a worker or an
employee with disabilities, is equal before the law and that unfair discrimination on a list of grounds, including disability is, proscribed.131
However, unfair discrimination towards persons with disabilities is perpetuated in many ways. The most significant of these are unfounded assumptions about the abilities and performance of persons with disabilities; an inaccessible workplace, including the manner in which jobs are advertised which might exclude or limit access to the advertisement; selection tests that can further discriminate unfairly against persons or potential workers with disabilities; and arrangements regarding interviews which might exclude or limit the opportunity  of
persons  with  disabilities  to  prove  themselves  for  employment.132   It
implies that employment and employment opportunities should be accessible to persons with disabilities and that they should be accommodated in accessing such employment opportunities as well as
work  environments.133 Safeguards against unfair discrimination   should
be implemented throughout the full cycle of employment – from recruitment to promotions and termination - of persons with disabilities as provided for in the obligations imposed by article 27 of the CRPD.

Article 5 of the CRPD on equality and non-discrimination provides for (1) States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and  equal benefit of the law; (2) States Parties shall prohibit all discrimination   on the basis of disability and guarantee to persons with disabilities equal  and effective legal protection against discrimination on all grounds; (3) In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
Article 27(1)(a) of the CRPD determine that States Parties recognise the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia: (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.
S 4(1) of the EEA provides that Chapter II applies to “all employees and employers” and also covers any “employment policy or practice” which includes “recruitment procedures, advertising and selection  criteria”.
S 6(1) of the EEA prohibits unfair discrimination in the workplace. It states that “[n]o person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.
Initial country report CRPD/C/ZAF/1 para 289 and the foreword to the Code of Good Practice to the EEA. In this regard see para 4 3 1   1.
Art 9 and 27 of the CRPD and United Nations Handbook for Parliamentarians on CRPD (2007) 79 – 80.

The initial country report recognises that society in general, unless directly affected by disability, remains largely ignorant of the rights of persons with disabilities. To this end, the report specifically highlights the
ignorance of society to implement reasonable accommodation measures required to give effect to the rights protected in the CRPD.134 The aim of reasonable  accommodation  is  to  enable  persons  with  disabilities    to
equally perform the essential functions of the work. Reasonable accommodation may require modifications or alterations to the way a  job is normally performed and should make it possible for a suitably
qualified person with a disability to perform the work on an equal basis with   others.135   However,   the   type   of   reasonable accommodation
required would depend on the type of work and its essential functions, the work environment and the specific impairment of the  person.
Reasonable accommodation, as defined in article 2 of the CRPD, is the necessary and appropriate modification and adjustment where needed, that does not impose a disproportionate or undue burden, to ensure to persons with disabilities the enjoyment or exercise of their rights on an equal basis with others. The adjustments in the context of work and employment should not impose a disproportionate or undue burden on the  employer,  but  should  rather  ensure  that  persons  with disabilities
enjoy or exercise their right to work on an equal basis with  others.136
However, it is important to note that the failure to reasonably accommodate persons with disabilities in the workplace will amount to discrimination based on disability, within the meaning of article 2 and 5(3) of the CRPD.
Section 1 of the EEA similarly defines reasonable accommodation,137 as “any modification or adjustment to a job or to the working environment that will enable a person from a designated group,138  to
have reasonable access to or participate or advance in employment”. Employers are required to adopt the most cost-effective means that are consistent with effectively removing the barriers to perform the job. This means that the employer need not accommodate a qualified applicant or an employee with a disability if in doing so an unjustifiable hardship will be imposed on the business of the employer. According to the Code of Good Practice, an unjustifiable hardship on the business of the employer
means an action that requires significant or considerable difficulty or expense.139

Initial country report CRPD/C/ZAF/1 para 59.
Art 2 of the CRPD.
Art 1 of the CRPD.
Part 6 of the Code of Good Practice of the EEA requires employers to make “reasonable accommodation” for people with disabilities in  particular.
S 1 of the EEA determines that designated groups that must enjoy the benefit of affirmative action are black people, women and persons with  disabilities.
Part 6.11 and 6.13 of the revised draft Code of Good Practice.

The obligation to reasonably accommodate persons with disability may  arise  when  an  applicant  or  employee  voluntary  discloses    a
disability-related accommodation need, or when such a need is self- evident to the employer.140 The employer should consult the employee
and, where reasonable and practical consult technical experts for advice on how to adequately address the need and to provide an appropriate solution. Reasonable accommodation does not only mean that obstacles and, or barriers be eliminated at the workplace, but it also requires positive measures to be taken in order to adapt policies, practices and the working   environment   in   order   to   promote   accessibility   in     the
workplace.141  Through  positive  measures  taken  by  employers, the
broader constitutional promise of substantive equality and affirmative action, contained in section 9(2) of the Constitution can be fulfilled.
This is also the second goal of the EEA contained in chapter III of the legislation,  which  places  an  obligation  on  “designated  employers”       to
implement affirmative action measures in respect of persons from “designated groups”.142 Persons with disabilities,143 as part of the
designated group must enjoy the benefits of affirmative action policies and practices. The reason why designated employers are duty-bound to favour persons with disabilities when making appointments and considering promotions, is a positive response towards addressing unemployment,  low  salaries  and  stereotyping  (as  seen  from     the
prevalence on disability in South Africa above),144 facing the majority of persons with disabilities.145

Currie and De Waal The Bill of Rights Handbook (2014)  235.
Part 6 of the revised draft Code of Good Practice. The Code provides examples of reasonable accommodation. This could entail the adaptation of computer hard- and software, the provision of training and evaluation material, and amendments to work time and leave. Ngwena “Equality for people with disabilities in the workplace: an overview of the emergence of disability as a human rights issue” 2004 Journal for Juridical Science 179.
S 1 and s 13 of the EEA. Designated employers are defined as municipalities, organs of state, employers with 50 or more employees and employers with less than 50 employees but with a total annual turnover higher than that of a small business in terms of the EEA.
S 1 of the EEA. Black persons are further defined as “a generic term, which means Africans, Coloured and Indians”.
Para 4 1 above.
Grobbelaar-du Plessis and Van Eck (2011) 248 and 252. The report of the SAHRC “Towards a Barrier-free Society: A Report on Accessibility and Built Environment” 2002 available at https://www.westerncape.gov.za/text/2004/ 11/towards_barrier_free_society.pdf 22 (accessed 2015-02-02) mentioned that “as a result, people with disabilities experience high unemployment levels and, if they are employed, often remain in low status jobs and earn lower than average remuneration. In terms of the Act, all legal entities that employ more that 50 people must submit Employment Equity Plans to the Department of Labour, showing how many people with disabilities are employees and what positions they hold”.

Designated employers do not have a choice as to implementation of affirmative  action  measures.146  Such  employers  must,  in consultation
with their employees, devise an affirmative action plan and, depending on the size of the undertaking, must annually or biannually report to the Department of Labour on their progress in pursuance of their affirmative
action plans.147  The plan  must  contain details  regarding   “preferential
treatment and numerical goals” aimed at attaining equitable representation at the workplace.148 The EEA does not set quotas, but the designated  employers,149  must  formulate  their  own  goals  in  their
affirmative action plans and strive to attain these goals. The initial country report refers to the self-determined targets of designated employers for, amongst others, employment of persons with   disabilities
and reasonable accommodation measures that will be undertaken, and the slow progress reported to  date.150
The slow progress reported in the initial country report is of particular concern in the light of the concerted efforts of Parliament (to enact enabling legislation such as the EEA), the Public Service Commission as part of their administrative responsibilities, as well as efforts by the Department of Public Service Administration and the Department of Women, Children and People with Disabilities to strengthen, support and
attainment of set targets for employment of persons with disabilities.151
Legislation such as the EEA and policies play a vital role in overcoming marginalisation, segregation and discrimination against persons with disabilities in the workplace. In the South Africa context and generally reflective of the trend worldwide, a significant barrier to the employment
of persons with disabilities is the absence of internal policies targeted at recruiting   and   employing   persons   with   disabilities.152   In    the
implementation of such a plan an employer may, for example, favour persons with disabilities above other more suitable candidates who do not  have  a  disability  in  an  attempt  to  reach  goals  in  respect   of

S 13(1) of the EEA provides that “[e]very designated employer must, in order to achieve employment equity, implement affirmative action measures” [our emphasis].
S 13(2) of the EEA describes the duties on designated employers. S 21 provides that employers with more than 150 employees must submit reports annually and employees with less than 150 employees must report every  second year.
S 15(2) of the EEA.
Employers employing more that 50 people.
Initial country report CRPD/C/ZAF/1 para 290. The public sector, as designated employer set its employment equity target for 2005 at 2% of the total work force, but had to extend this target annually due to the slow progress being made.
Initial country report CRPD/C/ZAF/1 para 292.
Braddock and Bachelder “Glass Ceiling and Persons With Disabilities David Braddock”   http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article
=1115&context=key_workplace (accessed on 2015-01-28); and Gida and Ortlepp “Employment of People with Disabilities: Implications for Human resource management practices” (2007) Acta Commercii 135-150.

representativeness.153 Further, chapter II of the EEA, which relates to formal   equality,   expressly   provides   that   the   implementation      of
affirmative action measures that coincide with the goals of the EAA does not constitute unfair discrimination against other   candidates.154
According  to  the  initial  country  report  the  initiatives  to    address
disability-equity policies and programmes in the public sector included the:155 JobACCESS Strategic Framework for the Recruitment,   together
with an accredited training course in disability management based on the JobACCESS Strategic Framework; Employment and Retention of Persons with Disabilities in the Public Service (2009); Handbook on Reasonable Accommodation for People with Disabilities in the Public Service (2007); targeted recruitment strategy to establish a database for persons with disabilities, intending to widen the pool for recruitment of persons with disabilities; and a draft policy on Reasonable Accommodation and Assistive Devices in the Public Service.
In respect of the development, implementation and refinement of disability-equity  policies  and  programmes  in  the  workplace,     labour
market should take note of the Code of Good Practice, established in terms of section 54(1)(a) of the EEA.156
4 3 1 1 Code of Good Practice in the Employment of People with Disabilities (Code of Good Practice)
The Code of Good Practice published in August 2002,157 is based on the
constitutional principle that no one may unfairly discriminate against a person on the grounds of disability.158 In order to align itself with the
obligations imposed by the CRPD, the Department of Labour published the revised Code of Good Practice on the Employment of Persons  with

In Department of Correctional Services v Van Vuuren 1999 20 ILJ 2297 (LAC) the Labour Appeal Court considered the following set of facts: Ms Van Vuuren, a white female, was “strongly recommended” for a position by an interviewing panel whereas four other candidates were merely “recommended”. The employer decided to appoint a black person who was only “recommended” based on an affirmative action policy that had been implemented. The employer admitted that the black candidate was appointed only because of his race. Having found that the employer had  not deviated from the collectively agreed upon affirmative action policy, the Court held that the decision to appoint the black man was just and fair. It held that the decision was “dictated by weighing up the comparative past inequalities suffered by the respondent and the other  applicants”.
S 6(2) of the EEA; and Grobbelaar-du Plessis and Van Eck (2011) 248 and 253.
Initial country report CRPD/C/ZAF/1 para 293.
Code of Good Practice was published in terms of s 54 of the EEA in GG 23702 of 19 August 2002, and revised in 2005 and Grobbelaar-du Plessis  and Van  (2011) 248.
Code of Good Practice (as revised); Grobbelaar-du Plessis and Van (2011) 248.
Legal Framework and Guiding Principles of the Code of Good Practice.

Disabilities in November 2015.159 The revised Code of Good Practice, is aligned with article 2 of the CRPD,160 and defines discrimination on  the
basis of disability as any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others of all human  rights  and  fundamental  freedoms  in  the  political,   economic,
social, cultural, civil or any other field.161 The foreword to the revised
Code of Good Practice highlights that discrimination towards persons with disabilities is a socially-construed action and can be avoided by ensuring better knowledge, understanding and awareness about disabilities and the challenges encountered by persons with disabilities. The   revised   Code   of   Good   Practice   further   acknowledges   that
discrimination based on disability includes all forms of discrimination, including denial of reasonable accommodation.162
In order to achieve their full inclusion, both socially and economically, an accessible, barrier-free physical and social environment is necessary. This means that the Code of Good Practice is not only part of the broader equality agenda for persons with disabilities, but also to South Africa’s
international obligations,163 to have persons with disabilities’ rights recognised in the  labour market.164 This is of particular importance    to
the labour market since South Africa’s society has to recognise and accept that persons or workers with disability are part of society and human diversity. Employers, employees, trade unions and organisations with expertise on disability, including Disabled People’s Organisations (DPOs), should use the Code to develop, implement and refine disability
equity policies and programmes to suit the needs of the workplaces.165
4 3 1 2 Technical Assistance Guidelines on the Employment of People with Disabilities (TAG)
In June 2017, the Department of Labour published its revised Technical Assistance Guidelines on the Employment of People with Disabilities (TAG).166 TAG is intended to complement the revised Code of Good
Practice  of  2015,  and  to  assist  with  the  practical  implementation of

The revised Code of Good Practice on the Employment of Persons with Disabilities was published in terms of Section 54(2) of the EEA of 1998 (as amended), on advice of the Commission for Employment Equity for public comment, in GG 39383 of 9 November  2015.
Art 2 of the CRPD.
Part 5.1 of the revised Code of Good Practice. According to article 1 of the CRPD a persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with  others.
Part 6 of the revised Code of Good Practice.
Art 27 of the CRPD.
Foreword to the Code of Good Practice.
Minister of Labour Technical Assistance Guidelines on the Employment of People with Disabilities (TAG)  (2017).
Foreword to (and purpose) of the TAG by the Minister of Labour in June 2017.

aspects of the EEA relating to the employment of persons with disabilities in the workplace. TAG therefore builds on the Code of Good Practice to set out practical guidelines and examples for employers, employees    and
trade unions on how to promote equality, diversity and fair treatment in employment through the elimination of unfair discrimination.167
It is important to note that the revised TAG aligns itself with the CRPD and aims to guide, educate and inform employers, employees and trade unions to understand their rights and obligations, to promote and encourage  equal  opportunities  and  fair  treatment  of  Persons      with
Disabilities.168 TAG safeguards against unfair discrimination throughout the full cycle of employment,169 – from recruitment to promotions and termination – as provided for in the CRPD.170
The EEA, as well as the revised Code of Good Practice and revised TAG, places specific emphasis on equity and the right to equal protection and benefit of the law of persons with disabilities. Not only does this fulfil the constitutional promise of substantive equality in employment, and the prohibition of unfair discrimination for every person with a disability, but it also aligns itself with the obligations imposed by the CRPD. Persons with disabilities are further protected from unfair labour practices in the Labour Relations Act of 1995, which is briefly discussed  hereunder.
4 3 2  Labour Relations Act 66 of 1995 (LRA)
It is important to note that the primary goal of the LRA is to give effect to the constitutional obligations contained in section 23(1) of the Constitution, which section 1(a) of LRA confirms.171 The  constitutional
right to fair labour practices is wide and non-specific enough to include persons or workers with disabilities. However, the constitutional right to fair labour practices should not be confused with the definition of “unfair labour practice” as contained in the LRA. The definition of “unfair labour practices”   contained   in   the   LRA   only   covers   specific    practices
perpetrated by employer.172 For purposes of this article, the focus falls
on the protection the LRA affords to employees with a disability in respect of unfair labour practices perpetrated against them, and unfair dismissal on grounds of incapacity due to injury and illness.173

Foreword to (and purpose) of the  TAG.
Foreword to (and purpose) of the  TAG.
The revised TAG addresses reasonable accommodation measures; recruitment and selection; medical and psychological testing; placement; training and career advancement; retaining; termination of employment; workers’ compensation; confidentiality and disclosure of disability; employee benefits; employment equity planning; education and awareness; monitoring and evaluation.
Art 3; 4; 5; 8; 9; 12 and 27 of the CRPD.
The section states that it is the purpose of the LRA to give effect to the  fundamental rights contained in the Constitution and the obligations incurred by the state as a member of the International Labour Organisation (ILO).
Chapter VIII of the LRA and Grobbelaar-du Plessis and Van Eck (2011) 254.
S 185 of LRA.

4 3 2 1 Persons with disabilities are protected against unfair labour practices
In terms of section 186(2) of the LRA, the term “unfair labour practice” means any unfair act or omission that arises between an employer and  an employee relating to the unfair conduct of the employer in the “promotion, demotion, probation … or training of an employee or relating to the provision of benefits”. The definition also covers the “unfair   suspension”   or   “other   unfair   disciplinary   action   short of
dismissal” of an employee, including employees with a disability.174 This
means that a worker or employee with a disability also has the option of referring a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) based on, for example, non-promotion, demotion or the  unfair  provision  of  benefits  should  it  relate  to  an      employee’s
disability.175
4 3 2 2 Persons with disabilities are protected against unfair dismissal
Section 186(1) of the LRA describes a number of occurrences covered by the term “dismissal” including the termination of a contract of employment  by  an  employer:  with  or  without  notice;176  the     non-
appointment of employees on fixed term contracts after such an expectation has been created by the employer;177 the refusal of an employer  to  allow  an  employee  to  resume  employment  after  taking
maternity leave;178 and the termination of the contract by an employee because the employer made continued employment intolerable.179 Before a dismissal can be deemed fair, two main requirements are set by
the LRA. A dismissal is deemed to be fair if the employer succeeds in proving that there was a fair reason for dismissal (also referred to as substantive fairness), and that the dismissal was effected in accordance
with a fair procedure.180 Of importance for the labour market is the fact that certain categories of dismissal are classified as being “automatically unfair dismissal”.181 Amongst others, it is automatically unfair should an
employee  be  dismissed  (with  or  without  notice)  on  grounds  of  the

Also included in the definition is any “occupational detriment” in  contravention of the Protected Disclosures Act 26 of 2000. The Act is also referred to as the “whistle blower’s act”.
S 10 of the EEA and Grobbelaar-du Plessis & Van Eck (2011) 255.
S 186(1)(a) of the LRA.
S 186(1)(b) of the LRA.
S 186(1)(c) of the LRA.
S 186(1)(d) of the LRA.
S 188 of the LRA and Grobbelaar-du Plessis and Van Eck (2011) 255-256.
S 187(1)(f) of the LRA includes a list of grounds upon which an employee may not be dismissed. The other grounds include, but are not limited to, race, age, gender, sex, political opinion etc. Grobbelaar-du Plessis and Van Eck (2011) 256.
However, the LRA adds an important qualification to this protection in so far as it specifically states that the dismissal of an employee on a ground such   as disability may be fair if it is based on the inherent requirements of a particular job Sec 187(2)(a) of the LRA; J Grogan Workplace law (2005) 147;

person’s “disability”.182 A number of disabilities can be encountered at the workplace.183 They include, for example, physical disability due to
illness and injury; mental incapacity due to stress, illness or trauma;184 and chronic illnesses that result in continuous absence from work.
Should an employee with a disability be subjected to an automatically unfair dismissal, he or she is entitled to lodge a claim for reinstatement
or a compensation order up to a maximum of 24 months’ remuneration calculated from the day of the  dismissal.185
It is important for the labour market to note that both the EEA and the LRA protect employees or workers with disabilities against unfair discrimination when they apply for work, when they qualify for promotion in terms of the provisions of the EEA, and against unfair
dismissal in terms of the LRA.186 Furthermore, schedule 8 of the LRA contains  a   Code  of   Good   Practice:   Dismissal,187   which  provides
guidelines regarding substantive fairness and the different procedures  that apply to dismissal on different grounds.188 It is important to note that, if these steps are not followed, the dismissal of a person with a
disability will not only be unfair, but will also automatically constitute unfair dismissal. The dismissal of an employee with a disability who was not incapacitated at the time of the dismissal is regarded as one of the
worst forms of discrimination possible.189
However, the initial country report recognises that despite enactment of the legislation discussed in paragraph 4 3, insufficient progress  has
been made in translating the legislative measures into economic independence for persons with disabilities.190 Reasons for the     slow

Schmahmann v Concept Communication Natal (Pty) Ltd 1997 ILJ 1333 (LC); and Archer v United Association of SA 2005 ILJ 790 (CCMA). Also see Grobbelaar-du Plessis and Van  Eck (2011)    256.

182

Grobbelaar-du Plessis and Van Eck (2011) 256, and Van Jaarsveld and Van Eck supra n 112.
Spero v Elvey International (Pty) Ltd 1995) 16 ILJ 1210 (IC); and Automobile Association of SA v Govender DA23/99) [2000] ZALAC 19 (20 September 2000).
Sec 194(3) of the LRA. Grobbelaar-du Plessis and Van Eck (2011) 256; Van Jaarsveld & Van Eck (2006) 168 - 169; Van Niekerk v Minister of Labour 1996 ILJ 525 (K); Walters v Transitional Local Council of Port Elizabeth 2000 ILJ 2723; and POPCRU v SA Police Service 2003 ILJ   254.
Van Jaarsveld and Van Eck (2006) 168.
Amended by Act 42 of 1996 and by Act 12 of  2002.
Standard Bank Ltd v CCMA & Others [2008] 4 BLLR 357; In terms of the Code, employers should follow a four-staged enquiry before dismissing an employee on grounds of disability. Firstly, the question is whether the employee with a disability is unable to perform his or her work. Secondly, if the answer to this question is in the affirmative, the next question is to what extent the employee with a disability is unable to do his or her work? Thirdly, the employer must consider whether the employee (with a disability) working conditions can be adapted, and lastly, if this is impossible, whether there is any alternative work which the employee/ worker with a disability could be required to do.
Grobbelaar-du Plessis and Van Eck (2011) 256-259.
Initial country report CRPD/C/ZAF/ para 289.

progress recorded in the initial country report were ascribed to the lack  of   access   to   the   built   environment   and   public   transport,      the
interrelatedness between poverty and disability, as well as the persistent attitudinal  and  communication  barriers.191  This  means  that future
initiatives in the realisation of the right to employment and work should involve a more holistic approach to accelerate inclusion and integration  of persons with disabilities in the  workplace.
4 4 Policy directives: The White Paper on the Rights of Persons with Disabilities (WPRPD)
The Department of Social Development reiterated in their White Paper on the Rights of Persons with Disabilities (WPRPD), 192 that the primary responsibility for disability equity lies with national, provincial and   local
governments and other sectors of society. 193 The policy directives in the WPRPD, approved by Cabinet in December 2015, task duty-bearers with the responsibility of eradicating persistent systemic discrimination and
exclusion that persons with disabilities experience on a daily basis. 194
The WPRPD is aligned with the disability-inclusive Sustainable Development  Goals  (SDGs),195  which  was  adopted  by  the  General
Assembly of the United Nations in September 2015. The WPRPD further aims to integrate the obligations of the CRPD with the national legislative framework and the NDP,196 by translating the CRPD into a tangible
workable and practical tool for the South African context on the protection, promotion and realisation of the rights of persons with disabilities by both the public and the private sector. 197 This must be
achieved through the development of targeted interventions that remove barriers in society,198 calling on all stakeholders to take responsibility for ensuring that the policy directives are implemented.199

Ibid and para 2 of the discussion.
Department of Social Development White Paper on the Rights of Persons with Disabilities (WPRPD) (2015), approved by Cabinet on 9 December 2015.
Overview of the WPRPD (2015).
Overview of the WPRPD (2015).
Transforming our world: the 2030 Agenda for Sustainable Development (SDGs)   resolution   A/Res/70/1   adopted   by   the   United   Nations   General Assembly on 25 September 2015. The SDGs is also known as the Global Goals. They are an universal call to action to end poverty, protect the planet and ensure that all people enjoy peace and prosperity. The goals build on  the success of the Millennium Development Goals, while including new areas such as climate change, economic inequities, innovations, sustainable consumption, and peace and justice, amongst other  priorities.
National Planning Commission in the Presidency’s Our future –  make  it work. National Development Plan: Vision 2030 (NPD)  (2012).
National Development Plan: Vision 2030 (2012) 38.
National Development Plan: Vision 2030 (2012) 38.
Department of Social Development (2015) foreword.

The  policy  directives  of  the  WPRPD  are  intended  to    accelerate
transformation and redress with regard to full inclusion, integration and equality for persons with disabilities.200 For this purpose the WPRPD
identify strategic pillars for realising the rights of persons with disabilities.201 Policy directives regarding the right to work and employment  of  persons  with  disabilities  are  addressed  under  the
strategic fifth pillar of the WPRPD that deals with reducing economic vulnerability and releasing human capital.202 In this regard, the WPRPD
instructs employers to take on the responsibility for providing reasonable workplace accommodation,203 according to the concepts of   barrier-free
access and universal design.204 In order to achieve this, the WPRPD calls on employers to build and/or renovate the workplace. These   proposed
accommodation measures might place a disproportionate or undue burden on the employer in order to address barrier-free access and universal design. However, the WPRPD does not give guidance to employers or give policy directives on how to achieve reasonable accommodation in the workplace in these circumstances. This means employers need to consult the EEA’s revised Code of Good Practice and
TAG regarding the practical implementation on aspects of reasonable accommodation measures in the   workplace.205
However, according to the WPRPD the EEA has not resulted in significant improvement of the employment status of persons with disabilities.206 The WPRPD refers to the Commission on   Employment
Equity, which reported minimal year-on-year improvements, and targets set well below the national disability prevalence by both the public and private sectors.207 To this end, the WPRPD provides that disability
related economic affirmative action targets in the workplace should be cognisant of disability population demographics.208 The targets  must

Department of Social Development (2015) foreword.
Department of Social Development (2015) 48 – 123. The strategic pillars are: removing barriers to access and participation; protecting the rights of persons at risk of compounded marginalization; supporting sustainable integrated community life; promoting and supporting the empowerment of children, women, youth and persons with disabilities; reducing economic vulnerability and releasing human capital; strengthening the representative voice of persons with disabilities; building a disability equitable state machinery; promoting International Co-operation; and monitoring and evaluation.
Department of Social Development (2015) 90 – 99.
Department of Social Development (2015) 34.
Universal design is the design of products, environments, programmes and services to be usable by all persons to the greatest extent possible without the need for adaptation or specialised design. Assistive devices and technologies for particular groups of persons with disabilities where these are needed, must also respond to the principles of universal design. Universal design is therefore the most important tool to achieve universal access.
See paras 4 3 1 1 and 4 3 1 2.
Department of Social Development (2015) 94.
Department of Social Development (2015) 95.
See para 4 1 on prevalence of disability in South Africa.

take population demographics, as well as redress requirements into
account to facilitate equity in employment and work by the year 2030.209 The WPRPD proposes targets of 50% of all affirmative action
opportunities targeting persons with disabilities, and 7% of affirmative action opportunities targeting women empowerment.210 A further policy directive determine that employees with disabilities must have access to
affordable vocational rehabilitation, skills development, job  retention and return-to-work programmes after onset of disability.211 The WPRPD
further provides that persons with disabilities must have access to integrated socio-economic development programmes such as social assistance, rehabilitation and habilitation, skills development, and entrepreneurial and employment support programmes. These development programmes must also serve as a national   employment
services database, which can be utilised by job seekers to link persons with disabilities with employment  opportunities.212
Success of the WPRPD will be measured through the implementation of its policy directives. To this end, the WPRPD provides for monitoring and evaluation of its policy directive in its strategic ninth pillar.213 The
directives regarding the monitoring process will involve amongst other the collecting, analysing and reporting data on activities, outcomes and impacts that supports effective management of implementation of the WPRPD. Policy directives regarding evaluations of progress made in implementing the WPRPD will assess amongst others; relevance, efficiency, effectiveness, impact and sustainability, which will provide credible and useful information to management and staff, as well as policy makers on accelerating the implementation of the  WPRPD.
It is envisaged that the policy directives contained in the WPRPD will be escalated into legislation to complete the domestication of the CRPD. This has to be done through a comprehensive review of existing legislation and gap analysis in order to propose specific legal reform measures  to  strengthen  accountability  and  recourse  for  persons with
disabilities.214
5  Conclusion
The South African Government acknowledged in their initial country report that although awareness raising of the rights of persons with disabilities in general, and in particular the CRPD after ratification in 2007 featured high on the national agenda, weaknesses in co-ordination, implementation, monitoring and evaluation have largely detracted from

Department of Social Development (2015) 95.
Department of Social Development (2015) 98.
Department of Social Development (2015) 96.
Department of Social Development (2015) 96.
Department of Social Development (2015) 116.
Overview of the WPRPD (2015).

its effectiveness and impact.215 The initial country report also recognised that despite the enactment of the legislation discussed in paragraph 4 3
above, insufficient progress has been made in translating the legislative measures into economic independence of persons with disabilities.216
This is also evident from the situational analysis on the prevalence of disability in paragraph 4 1 above and the low labour market absorption  of  persons  with  disabilities in  South  Africa.  The  SAHRC’s  report of
2017,217  further  suggests  that  the  availability  of  accurate  data  on
disability is limited, and prevents proper assessment of the progress
made in realising the rights of persons with disabilities. Statistics regarding  persons  with  disabilities,218  should  provide  a  basis   for
measuring progress in realising the rights to work and employment.
Progress captured through statistics and data should be reported in both the comprehensive initial state party report,219 and subsequent reports,220 to the CRPD Committee in order to measure the progress
made in realising the right to work. It is for this reason that the CRPD recognises, and the South African government should notice, the importance to collect and maintain data on disability to enable formulation of policies that will facilitate implementation and monitoring
of state parties compliance with the CRPD.221
The recording of progress made through statistical evidence is also important in the evaluation of labour market’s huge challenge to employ and reasonably accommodate persons with disabilities throughout their full cycle of employment. Labour market should also seek strategic partnerships with the disability sector, the Department of Labour and Department of Social Development for assistance and guidance in respect of implementation of their article 27 of the CRPD and national legislative obligations. In this regard, the Department of Labour revised
the EEA’s Code of Good Practice in 2015,222 and TAG in 2017,223 to align
itself with the obligations imposed by the CRPD. Cabinet further approved the Department of Social Development’s WPRPD towards the end of 2015, which aims to integrate the obligations of the CRPD with
the national legislative framework and the NDP.224

Initial country report CRPD/C/ZAF/1 para 57.
Initial country report CRPD/C/ZAF/ para 289.
See para 4 1.
Schneider The social life of questions: Exploring respondents' understanding and interpretation of disability measures (PHD dissertation 2012 University of  Witwatersrand) 1.
Art 31(1) of the CRPD.
Art 31(2) of the CRPD
Art 31 of the CRPD determines that states parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention.
See para 4 3 1 1.
See para 4 3 1 2.
See para 4 4.

Monitoring and evaluation of the progress of implementation of the policy directives and targets to promote, protect and advance employment of persons of disabilities are imperative in the realisation of the right to work and employment. This could only be achieved if consistent measures are in place to record the persistent challenges of persons with disabilities through collecting disability data and tracking of
statistical trends in the workplace.225 Persons with disabilities should   be
involved in this process through participatory data collection that reflects their challenges and reasonable accommodation needs in the workplace.226  Employers  should  ensure  that  there  is  evidence    that
persons with disabilities are considered and integrated in the workplace through data recorded and reflected in existing performance monitoring frameworks.227 The information collected from labour market should be
disaggregated and used to assist government with their assessment of progress of implementation of policy  directives.
Monitoring and evaluation processes on the employment of persons with disabilities should significantly improve the current employment  and retention rate of persons with disabilities in South Africa. Progress can only be measured through the analysis of disability statistical evidence of the progressive realisation of the right to work and employment. In absence of such efforts, a new dawn in realising the right to work will remain an impossible reality for the majority of persons with disabilities in South Africa.

Department of Social Development (2015) 117.
Department of Social Development (2015) 117.
Department of Social Development (2015) 117 and para 4 3  1.