'The use of the comparative method requires knowledge not only of the foreign law, but also of its social, and above all its political context. The use of comparative law for practical purposes becomes an abuse only if it is informed by a legislative spirit which ignores the context of the law.'

[O Kahn–Freund, “On Uses and Misuses of Comparative law”, The Modern Law Review, (1974) 27]

INTRODUCTORY REMARKS

In an article by the writer posted on LinkedIn entitled “THE EMPLOYMENT EQUITY ACT, 47 OF 2013 & EMPLOYMENT EQUITY REGULATIONS, 2014 -IMPORTANT ISSUES AND QUESTIONS?” September 13 2014*, it was mentioned that SA employers would be wise to revisit their Human Resources policies, procedures, guidelines and any document that may be relevant thereto with the purpose of ensuring compliance with the amendments to Employment Equity, 55 of 1998 [EEA].

*[Also published in: “Employment Equity Newsletter – CCMA” (April/May 2015) 2nd ed, 6-8; “Legal Brief Today – Workplace”, (September 17, 2014) Juta & Co Ltd].

 

The gratuitous advice referred to in the article supra was given in good faith especially if seen in the light of the promulgation of the amendments to South African Employment Equity legislation, namely Employment Equity Amendment Act, 47 of 2013 [EEAA] and the Employment Equity Regulations, 2014 [EER] which came into effect on 01 August 2014 [EEA].

Following thereon and as recent as on June 1, 2015 the SA Minister of Labour in accordance with the provisions of section 54(1) of the ‘new’ EEA, and on advice of the Commission for Employment Equity signed “The Code of Good Practice On Equal Pay/Remuneration For Work Of Equal Value” where after the Code was duly published in the Government Gazette, on June 1, 2015 – and so be it as the saying goes.  

In the article referred to above a friendly comment was made in passing by the writer as to the statutory need to revisit and if necessary add or amend HR policies. It was stated that, “One hopes that employers are not adopting a ‘wait and see’ approach as to compliance with the legislation, for example to await a ‘test case’ or legal precedent to be set by the Courts or even the CCMA”.

The South African Commission for Conciliation, Mediation & Arbitration (CCMA) published the first edition of a publication entitled, “Employment Equity Newsletter – CCMA” under the editorship of Senior Commissioner Winnie Everett, an internationally recognised authority in employment law and amongst other the subject matter of employment discrimination.

The said publication is bound to become an authoritative work of reference as to important developments in South Africa especially within the field of employment discrimination law not only insofar as it pertains to how the positive law is interpreted and applied by Commissioners of the CCMA and Judges of the Labour Courts.

The publication Employment Equity Newsletter – CCMA also contains a statistical comparative analysis of trends in the number of cases submitted to the CCMA for resolution as well as information as to the cause of action, outcome, albeit conciliated/mediated or arbitrated ‘adjudicated’.

Of interest to readers may be the editorial comment by Commissioner Everett in “Employment Equity Newsletter” (April/May 2015) 2nd ed, “The CCMA commissioners have seized the opportunity to provide clarity on the meaning of arbitrary grounds of unfair discrimination since the amendments to the Employment Equity Act (EEA) came into effect on 1 August 2014.

The amendments conferred jurisdiction on the CCMA to arbitrate unfair discrimination cases where the dispute involves sexual harassment, and all other unfair discrimination cases where the applicant earns below the Basic Conditions of Employment Act threshold [currently R205, 433.30 per year] or the parties consent to arbitration…In this issue we provide summaries of interesting and important cases dealing with unfair discrimination on both listed and arbitrary grounds. These include cases where the applicant claimed unfair discrimination on grounds of pregnancy…”

Discrimination on the ground of pregnancy is referred to as one of the listed grounds in terms of section 6(1) of the EEA that deals with the Prohibition of ‘Unfair ‘Discrimination: 

 ‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed 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, birth or on any other arbitrary ground.’’; and

(2) It is not unfair discrimination to –

(a)…

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a  job;

(3)…;

(4) A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.” [Emphasis added].

In “Employment Equity Newsletter” 2nd Ed, 2 - Everett, C under the heading “Pregnancy” [listed round] provides an interesting summary of two matters where the CCMA dealt with unfair discrimination on the ground of pregnancy.

The first matter pertained to a case where woman alleged unfair discrimination on the basis of her pregnancy. It involved a mine in Limpopo [a province in SA], where the underground worker was put on five months’ unpaid leave after a reported pregnancy.

To protect pregnant women, the employer normally takes steps to find alternative surface work, but in this case, the Commissioner found that applicant was placed on unpaid leave simply because she fell pregnant twice in three years. “She was the only person who fell pregnant twice in three years; that is why she was the only person subjected to this type of treatment out of a total of eighteen pregnant employees. She was clearly unfairly discriminated against on the basis of her pregnancy.” (LP5753-14)

The second matter involving pregnancy, the Managing Director of a company stated in an email that, “Clearly this pregnancy is becoming a problem. I can see it is becoming a disability and a liability”. The Commissioner found that the comment was unwarranted and discriminatory even if it was in response to a perceived drop in performance. (GATW 11893-15) [Emphasis added].

Upon perusal of the summaries of the two matters supra the following could be deduced:

 i) That the inconsistent and [unfair] discriminatory treatment of an Applicant vis-à-vis a comparator, regardless of the fact that both are pregnant, could not be a determinative factor used in justification of, or as a defence for differential treatment;

 ii) That an Applicant could not be penalised or treated less favourably in the form of the unilateral imposition of ‘unpaid leave’ for falling pregnant twice within a three year period, ostensibly on the ground of what could be termed ‘a predisposition to conceive or repetitive conception’; and

iii) That employers should desist from making unwarranted and potentially discriminatory remarks which may be offensive to the dignitas of the recipients thereof.

Upon perusal of articles posted on LinkedIn the aforesaid unwarranted and discriminatory comments made are not confined to the SA labour [mining] or other economic sectors. Discrimination based on pregnancy is an international phenomenon as is borne out by the cited matter as discussed below.

In an article by C Stoneburner Esq., “Hey pregnant lady, why don’t you stay home, enjoy some of our doughnuts, and put up your feet? – Employment Discrimination Report” (March 10, 2015) Fox Rothschild LLP, New York, “Although the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close”.  

The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.

The Complaint alleged that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant.  However, this was not a simple case of an employee being terminated because she was pregnant.  “The complaint alleged that employees who were pregnant were required to provide “a written medical release” assuring the company that they did not have a “high-risk pregnancy “and that it was safe for the employee to perform normal job duties. [Emphasis added]. 

The EEOC also alleged that this medical release was required even in situations where employees did not request “any type of accommodations or disclose that there were any medical issues related to the pregnancy”.

When rumours spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant.  She refused to confirm that she was in fact pregnant.  Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance.  Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note.  Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.

According to the author, “This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act  — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children.  Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.”

Having set the scene, so to speak for the purpose of this article it should not be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter. The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

Writer would also refer to the same or similar international jurisprudence on the subject matter that may prove of relevance and edification to the reader.

PREGNANCY – DUTY TO PROVIDE ‘REASONABLE ACCOMMODATION’ – CCMA ARBITRATION AWARD

[See: Tabane and others / Impala Platinum Ltd [2015] 8 BALR 873 (CCMA)]

The matter was referred to the Commission for arbitration in terms of Section 10 of the Employment Equity Act, No 55 of 1998 as amended (EEA). The dispute was couched in the form of ‘unfair discrimination on the grounds of pregnancy’. [See: NWRB 2464-14 – 25 May 2015].

SUMMARY OF BACKGROUND & MATERIAL FACTS:

Four Applicants referred a dispute against their employer, a mining conglomerate in SA, in that they alleged unfair discrimination by the Respondent and more specifically on the grounds as set out hereunder:

1. That they have been discriminated against based on their pregnancy as all other pregnant Employees who were employed in risk positions were placed in alternative positions, as opposed to being placed on maternity leave;
2. That the Respondent failed to comply with the provisions of its Pregnancy Policy; alternatively applied the said policy in an inconsistent manner and as a consequence they were unilaterally placed on maternity leave long before their actual expectant dates which led to the Applicants having to take unpaid maternity leave in order to recover from childbirth and to fulfil their care giving duties.

As a remedy the Applicants prayed for compensation in the form of non – patrimonial loss, to wit the loss of dignity in the form of a solatuim as well as compensation for patrimonial loss suffered for the period having been on unpaid maternity leave caused by the Respondent’s failure to comply with its maternity policy and the unjustifiable inconsistent application of the said policy.

At the commencement of the proceedings the Respondent brought all sorts of preliminary points [application for postponement – denied by the Arbitrator], a point in limine to the effect that the Applicants’ case was bad in law and not capable of succeeding – point in limine dismissed by the Arbitrator] and following thereon an application for recusal of the Arbitrator which application was unsuccessful.

Of some interest was the point in limine raised by the legal representative for the Respondent. She referred to the Constitutional Court judgment in Yonela Mbana v Shepstone & Wylie (not yet reported Case No CCT 85/14, handed down on 7 May 2015) where a black female claimed discrimination on the grounds of race and social origin and cited as comparators a black male and two white females. 

The Court held that it was unlikely that the differential treatment was attributable to the grounds raised as the comparator is also a black person and in this regard held that her claim that she was discriminated against on the basis of race loses traction. [See par [38] of the award].

The Arbitrator found at [39] “According to the issues in dispute a determination is required on whether or not the Respondent’s conduct constitutes discrimination on the grounds of pregnancy, and if it did, whether or not such discrimination was rational and not unfair or otherwise justifiable. The Applicants in comparing themselves with the five (5) other pregnant Employees, who were given alternative employment (comparators), is according to my understanding but one facet of their claim. 

I would agree with the Respondent that it is unlikely that the differential treatment was attributable to their pregnancy insofar the comparison is made with the five (5) other pregnant Employees.  However the Applicants’ claim is wider than a mere comparison with the five (5) Employees mentioned. 

According to the Applicants’ claim of discrimination, it was argued that they have suffered unfavourable treatment as no alternative employment was given to them, they were not consulted prior to being placed on maternity leave and that the maternity leave was unilaterally imposed on them”.  [Emphasis added].

SUMMARY OF THE ARBITRATOR’S FINDING AND AWARD:

For the sake of brevity the Arbitrator’s finding and award would be recorded in truncated form hereunder:

1. In matters of discrimination and more particularly pregnancy it is not always necessary to cite a comparator in order to prove differential treatment. In Wallace v Du Toit [2006] 8 BLLR 757 (LC) the Labour Court held that the dismissal of Ms Wallace based on the assumption that she would be unable to continue to fulfil her duties as child minder merely because she was pregnant, amounted to unfair discrimination. There was no comparator in the cited case.
2. In the United Kingdom, the Equity Act of 2000 removed the need to point to a comparator when alleging discrimination on the basis of pregnancy.

The Respondent argued that the Applicants restricted their claim by agreeing that the reasonableness of the Pregnancy Policy was not in dispute and that no consideration could accordingly be given to any subsequent argument that was raised. 

The Labour Court in Harmse v City of Cape Town [2003] 6 BLLR 557 (LC) held that a failure by an Applicant to specify whether discrimination is direct or indirect does not render a claim expiable.  The Applicants were laypersons and unable to distinguish between direct and indirect discrimination. The Arbitrator found that the Respondent was fully aware of the particulars of the Applicant's claim from the very onset of these proceedings and was afforded a fair opportunity to defend the claim.

By referring to Section 26 of the Basic Conditions of Employment Act, 20 of 2013 read with the Code of Good Practice on the Protection of Employees during Pregnancy and after Childbirth (the Code), item 5.3 of the Code requires, where appropriate, that the Employer should also maintain a list of employment positions not involving risk to which pregnant or breastfeeding employees could be transferred to.

Likewise item 5.8.2 requires the Employer, the Employee and her representative to determine what steps to take to prevent the exposure to the risk by adjusting the employee’s working conditions.

The Arbitrator also found that having regard to the above and read with Section 15(2) of the Employment Equity Act, a duty to reasonable accommodation is established. A failure to reasonably accommodate and recognize pregnancy and maternity, and in general the reproductive role, can constitute discrimination.

Having found that the Respondent failed to adhere to the spirit and letter of its Maternity Policy, by imposing maternity leave on the Applicants, without following a meaningful consultative process in order to seek alternative positions in accordance with the principle of ‘reasonable accommodation’ the Respondent acted irrationally, without justification and thereby committed an act of unfair discrimination.

The Applicants were awarded compensation for non-patrimonial loss in the form of solatuim as well as compensation for patrimonial loss suffered for the periods of unpaid maternity leave taken.

The celebrated author Professor John Grogan in J Grogan, ‘Stork Party’ Employment Law Journal, August 2015 LexisNexis commented on the Impala Plats award as is set out hereunder:

At the end of a five month strike in the platinum industry, Impala Platinum found itself inundated with applications for maternity leave. Some of the expectant mothers were underground workers.

Implats removed those women from their posts and placed them on maternity leave because, so it claimed, there were no suitable and safe alternative posts for them.

The expectant mothers claimed that they had been unfairly discriminated against on the ground of pregnancy because other pregnant employees had been found alternative work in the past. The case involved a balance between pregnant mothers’ right not to be unfairly discriminated against and their employers’ obligation to ensure a safe and healthy working environment.

In Tabane and others / Impala Platinum Ltd [2015] 8 BALR 873 (CCMA), the Commissioner accepted pregnant or nursing mothers are prohibited from engaging in hazardous work. The Commissioner noted that the applicants’ claim was wider than a mere comparison between themselves and colleagues. They also claimed that they were discriminated against because alternative work had not been provided. Everybody accepted that Implats was obliged to remove the applicants from underground work.

But Implats was also obliged by its own policy to find ways of accommodating pregnant employees. The search for alternative employment had consisted of one meeting. However, the company’s pregnancy policy required exhaustive attempts to find alternative employment before forcing pregnant women to take maternity leave before they would otherwise have had to take it.

In that regard, the employees had been treated less favourably than some other female employees. Maternity leave, albeit on full pay, had been imposed unilaterally on the applicants before they would ordinarily have been required to take it.

The Commissioner found that the applicants had proved that they were discriminated against on the ground of pregnancy, and that the respondent had failed to prove that the discrimination was fair.

The applicants were each awarded damages of R25 000.

DUTY TO PROVIDE ‘REASONABLE ACCOMMODATION’ – PROBLEMS & PUZZLES

[Picture: Courtesy Julie Brook, Esq., “Disability Accommodation” (October 21, 2013) CEB blog posts]

In the arbitration award referred to above in paragraphs (iv) & (v) the Arbitrator found that by reference to Section 26 of the Basic Conditions of Employment Act, 20 of 2013 read with the Code of Good Practice on the Protection of Employees during Pregnancy and after Childbirth (the Code) read with Section 15(2) of the Employment Equity Act, a duty to reasonable accommodation is established.  A failure to reasonably accommodate and recognize pregnancy and maternity, and in general the reproductive role, can constitute discrimination.

The duty to accommodate goes beyond avoiding a specific discriminatory act.  Sound workplace policies must be implemented that afford accommodation. 

Employers must therefore make bona fide attempts to adapt the workplace and or duties of Employees in order for pregnant Employees to retain their positions and or investigate possible alternative positions wherein these Employees can be temporarily transferred to.  These policies should be flexible enough to accommodate the different needs that may accompany different positions and differences in pregnancies. [At 47].

The fact that accommodation may ultimately prove impossible, cannot be ignored, but all options must be seriously considered and weighed before determination is made on the impossibility of accommodation. [At 48].

It is trite that the awards by Commissioners of the CCMA could not be regarded as legal precedent or binding authority. In Mustek Ltd v Tsabadi NO and others [2013] 8 BLLR 798 (LC) the Court held at [13] “That to argue that a Commissioner is bound by the findings of another Commissioner is repugnant to the rules of precedent.”

This notwithstanding, the award by a Senior Commissioner of the CCMA has persuasive value especially in the event that an arbitration award is reported in the relevant law journal.

Nevertheless, it was deemed apposite to restate the relevant statutory provisions in terms of SA law.

THE RELEVANT PROVISIONS OF SOUTH AFRICAN LEGISLATION

For the purpose of this article it was deemed apposite to refer section 9 and 10 of the Constitution of the Republic of South Africa, 1996 – “CHAPTER 2 ‘BILL OF RIGHTS’” in that it enshrines the rights of all people in SA and “affirms the democratic values of human dignity, equality and freedom.” [See: section 7 ‘Rights’ – Constitution].

Section 9 and 10 of the Constitution stipulate as set out hereunder: 

“9. Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection. 

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

 

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.”

The list of prohibited grounds of discrimination contained in section 6(1) of the EEA is open-ended, thus making it necessary to distinguish between ‘listed’ and ‘unlisted’ grounds. The listed grounds are identical to those formerly contained in item 2(1)(a) of Schedule 7 to the LRA, with the addition of ‘pregnancy’, ‘HIV status’ and ‘birth’, and include all the grounds listed in section 9(3) of the Constitution with the addition of ‘family responsibility’, ‘HIV status’ and ‘political opinion’.

‘Pregnancy’ is defined as including ‘intended pregnancy, termination of pregnancy and any medical circumstances related to pregnancy’ [s 1]. While the definition does not allude to ‘potential’ pregnancy – that is, the fact that a woman capable of bearing children may be perceived as likely to become pregnant – discrimination against an employee or job applicant on this ground will undoubtedly be treated as sex discrimination. [See: D du Toit et al “Labour Relations – A Comprehensive Guide” 6th Ed (2015) 676].

In the authoritative publication by JL Pretoruis et al “Employment Equity Law – Reasonable Accommodation” (2012) LexisNexis 7-44 to 7-59, the learned authors at [7-18] address the interface between reasonable accommodation and affirmative action under the EEA and makes specific reference to international jurisprudence.

Referral is made to ‘European Community, Council Directive 86/613 of December 1986 and wherein the interface between reasonable accommodation and the protection of women during pregnancy and motherhood was confirmed.

The learned authors at 7-45 to 7-46, paragraph 7.8.2 “Examples of reasonable accommodation of pregnancy and maternity” analysed international jurisprudence and in effect advise the reader as to measures to be introduced in order to give effect to the principle of ‘reasonable accommodation’.

Referral is also made at 7-44 by Pretoruis supra, “Employers will have to state the specific barrier and the subsequent measures instituted in their reports to the Department of Labour  in terms of Section 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000” [See: 7-44, footnote 205].

Section 8(f) prohibits any person from discriminating against any person on the ground of pregnancy. It will, therefore, cover instances where, for example, a medical aid fund discriminates against pregnant women on unfounded assumptions or excludes certain categories of women from cover.

Therefore, it is submitted that the finding by the Commissioner referred to supra insofar as the duty to provide reasonable accommodation in the event of pregnancy forms part of SA employment law could not be faulted.

Furthermore, in an article by DC Saxe et al “Vacations, Family and Medical Leave, and Other Time Off – Pregnancy Disability Leave” (2015) Continuing Education of the Bar – California (CEB), pregnancy leave falls under the provision of ‘Disability Leave’.

A woman is disabled by pregnancy, childbirth, or related medical conditions if, in the opinion of her health care provider, she is unable to work at all because of pregnancy, childbirth, or related medical conditions, is unable to perform any one or more of the essential functions of her job, or is unable to perform those functions without undue risk to herself, to the successful completion of her pregnancy, or to other persons. [2 Cal Code Regs §11035(f)].

A woman also is considered to be “disabled by pregnancy” if she is suffering from severe morning sickness or needs to take time off for prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; postpartum depression.

For the sake of brevity of this article further reference to the relevance of international jurisprudence was deemed inappropriate with the exception of an article by C Tanzola, Esq. “Accommodating Employee Disability – Not All That Painful” (2014) Sherrard Kuzz LLP, Ontario, Canada, where the learned author provides the reader with some practical tips as to measures to accommodate an employee, albeit due to disability however of general application insofar as pregnancy accommodation is relevant.

Kuzz observes that the Ontario Human Rights Code ("Code") requires an employer to accommodate an employee with a disability "to the point of undue hardship." This means considering the employee's restrictions and limitations and either modifying the employee's current job or finding other work as close as possible to the  employee's pre-disability job, within the scope of the employee's abilities.

There are four fundamental steps to accommodation:

1. Consider whether a disability exists.

"Disability" is defined broadly under the Code to include any degree of:

• physical disability, infirmity, malformation or disfigurement caused by an injury or birth defect or illness;
• mental impairment or developmental disability;
• learning disability or mental disorder, or
• injury or disability for which benefits are claimed or received under the Workplace Safety and insurance Act ("Act") [Canadian statute].

The definition of "disability" does not consider where the injury or illness occurred; only that it exists. A common cold or stress (which does not otherwise trigger a disability, such as depression or anxiety) is not a "disability" under the Code.

2. Complete a procedural analysis.

In most cases, an employer becomes aware an employee has a disability when the employee asks for accommodation. However, in some cases it may be incumbent on the employer to make a proactive inquiry.

For example, where the employer observes a dramatic change in the employee's behaviour causing a disruption in the workplace, the employer may need to inquire whether the employee requires accommodation.

Once it has been established that an employee has a disability, the employer must consider what can be done to facilitate the employee's continued participation in the workplace.

This procedural analysis typically begins with an inquiry into the nature of the disability (e.g. physical or mental), the employee's limitations (e.g. no lifting of more than 10 lbs) and for how long the limitations - and thus the need for accommodation - may last.

Where the information from the employee's doctor is insufficient, an employer might consider retaining the services of its own doctor or asking the employee to attend an independent medical examination paid for by the employer. When all else fails, an on-going failure to cooperate can lead to discipline or the denial of the accommodation request.

If it is not possible to modify the employee's regular job, other similar jobs at the same wage rate must be considered. The employer must also explore if the tasks of multiple positions can be combined or bundled. In essence, the duty to accommodate requires the employer to offer work that is as similar as possible to the employee's pre-disability job.

3.  Complete a substantive analysis.

Although closely related to the procedural analysis, the substantive analysis considers the specific modifications that may be required so the employee can fully participate in the workplace. This may include decreased productivity standards, reduced hours, increased breaks and the ability to sit and stand as needed.

To this end, while an employee's input into the accommodation process is important, the employee does not have the right to insist on a more favourable position, and any absence resulting from an employee's refusal to work in an otherwise suitable position is culpable.

Finally, unless the cost of a modification will significantly impact the viability of a business, the cost of accommodation will not be accepted as "undue hardship".

4..   Follow-up regularly.

Once an accommodation plan has been established, the employer should remain in regular contact with the employee and request updated medical information and reports to ensure that as the employee's disability changes (if at all) the accommodation plan is amended accordingly. Ideally, the employee should be working his way back to his pre-disability position.

Practical Tips

The duty to accommodate, while at times daunting, can be managed to the benefit of both the employer and employee. To simplify the process remember the following tips:

1. Each case must be evaluated and analyzed on its own merits.
2. Accommodate to the point of undue hardship for all cases of disability.
3. Consider every suitable or potentially suitable workplace position, including bundled tasks.
4. Continue to seek out updated, meaningful medical information.
5. Work with the employee (and union), to explore and implement appropriate accommodation.
6. When in doubt, reach out to experienced employment counsel who will help you navigate through the process.

 

CONCLUSION

According to Du Toit supra an employer need not accommodate applicants or employees with disabilities if doing so would impose an ‘unjustifiable hardship’ on the business of the employer.

“Unjustifiable hardship” is defined as ‘action that requires significant or considerable difficulty or expense’ and involves considering, among other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.

It should be reiterated that referral to the SA law herein as it pertains to disability should not be seen as equating pregnancy with a form of disability. The referral to the law as it pertains to disability was done with the purpose to provide the SA reader with guidelines as to the manner in which the Courts and Commissioners may approach the employer’s duty to provide reasonable accommodation in the event of pregnancy.

In Standard Bank of SA v CCMA [2008] 4 BLLR 356 (LC) par 98; [see also MEC: Education, KZN v Pillay 2008 (2) BCLR 99 (CC) par 76], the SA Labour Court held, unjustifiable hardship means ‘(m)ore than mere negligible effort’, and, as in the case of reasonable accommodation, it imports a proportionality test.

The Duty to Provide Reasonable Accommodation – An Imposition of a ‘Disproportionate Burden on the SA Employer’?

In the authoritative publication by Pretoruis et al “Employment Equity Law – Reasonable Accommodation” at 7-42 to 7-43 supra it is suggested that making ‘reasonable accommodation’ should not impose a disproportionate burden on the employer.

It was also noted that comparative law supports the duty to provide reasonable accommodation and that such duty is implied in the Constitution as well as the EEA.

The determination of whether the employer would be disproportionately burdened upon imposition of reasonable accommodation calls for an objective individualised assessment of the nature and cost of accommodation in the light of the employer’s financial resources, workplace structures, workplace environment and extend of business operations.

It calls for, and should be assessed and determined on a case-by-case basis having regard to factors such as:

- the nature and cost of accommodation required;

- an objective assessment of the employer’s overall financial resources;

- the number of persons employed;

- the effect on expenses and resources;

-  the impact of the accommodation on the operation and continued commercial viability of the entity;   

- geographical separateness, administrative or fiscal relationship of the facility in question to the covered entity.  

Whether hardship is justifiable will differ according to the circumstances of each case. In Standard Bank of SA v CCMA it was held that the expected modification or adjustment in the workplace should be based on a ‘pragmatic common sense approach’.

The fact remains that the employer is in a better position to formulate accommodation and is duty bound to initiate the process.

The employee has a reciprocal duty to participate in the process and to assist in securing appropriate accommodation.

Any reasonable proposal which is offered to the employee may not be turned down by him/her without just cause or compelling reason; failing whereto the offer may be withdrawn and punitive action may follow as a consequence of unreasonable refusal or rejection of a bona fide offer of accommodation by the employer

 

Johann Scheepers

September 13, 2015 [updated]

Copyright:

Copyright reserved by the writer hereof. No part of this article/ guide may be reproduced, without prior written permission by the author.

The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.

The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.