Access to work for disabled persons in South Africa: A rights critique

Meryl Candice Du Plessis

Description

Assumptions of inability and the perceived costs of employing disabled persons are two of the primary reasons why it has been impossible or difficult for many capable disabled persons to access work and to continue working. This book considers the South African legal framework that seeks to promote such access and critiques it with particular reference to the intersections of the rights to equality and access to social security. One of the primary arguments is the need for a more active conception of social security in which access to work for disabled persons is recognised as an integral component of promoting both social security and substantive equality.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2017
• Nombre de lectures: 1
• EAN13: 9781920538675
• Langue: English
• Poids de l'ouvrage: 2 Mo

Extrait

Access to work for disabled persons in South Africa: A rights critique

Meryl Candice du Plessis School of Law, University of the Witwatersrand, South Africa

2017

Access to work for disabled persons in South Africa: A rights critique

Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication.

For more information on PULP, see www.pulp.up.ac.za

Printed and bound by: BusinessPrint, Pretoria

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.pulp.up.ac.za

Cover: Yolanda Booyzen, Centre for Human Rights

ISBN: 978-1-920538-67-5

© 2017

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TABLE OF CONTENTS

Preface Acknowledgments About the author Dedication Abbreviations Cases, legislation, government publications and international instruments

vi vii viii ix x

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Introduction 1 Access to work for disabled persons: Historical and contemporary challenges 1 2 Overall objectives of the book 4 3 Central themes in the book 5 4 Overall structure of the book 9 5 Notes on selected terminology 10 6Scope of the book 11

Approaches to disability and their relevance for labour and social security law 1 Introduction 13 2 Historical and contemporary influences on conceptions of and responses to disability 15 3 Working definitions of disability 26 4Move towards social explanations of disability 28 5 Scope of and issues raised by social understandings of disability 31 6 A suggested theoretical typology of conceptions of disability 38 7 Themes that flow from social explanations of disability 41 8 Objectives of labour and social security law and the relevance of disability 43 9 Broad analytical framework 45

Substantive equality and conceptions of disability 1 Introduction 2 Social understandings of disability and rights 3Substantive approach to equality 4 Capability, disability and substantive equality 5 Concluding remarks

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Prohibitions on discrimination: Potential and constraints 1 Introduction 76 2 Legal framework for equality in the labour context 77 3 Context in the equality ‘test’ 86 4 Disability discrimination and disadvantage 96

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Causes of discrimination and the limitations of duties to refrain from discrimination 111 Concluding remarks 114

Employment testing 1 Introduction 116 2 Medical testing and similar assessments 117 3 Psychological testing and similar assessments 121 4 Employment testing and unfair discrimination 124 5 Employment testing and direct and indirect discrimination: Selected issues 129 6 Concluding remarks 132

Positive non-discrimination and affirmative action duties 1 Introduction 134 2 Reasonable accommodation 135 3 Reasonable accommodation as a positive duty 142 4 Considerations in the implementation of reasonable accommodation 156 5 Positive duties, social understandings of disability and substantive equality 165 6 Positive duties and structural change 176 7 Concluding remarks 177

Positive state duties in respect of access to employment – constitutional framework 1 Introduction 178 2 Rights dimension of access to social security 180 3 Right of access to work for disabled persons: Selected issues 205 4 Concluding remarks 213

Network of social security laws that impact access to work for disabled persons 1 Introduction 214 2 Regulatory framework for social assistance 214 3 Occupational injuries and diseases and return-to-work measures 217 4 Unemployment insurance regulatory framework 219 5 Disability benefits in the ‘private’ sphere 221 6 Work opportunities for disabled persons 226 7 Concluding remarks 230

Overall conclusions and recommendations 1 Introduction 232 2 Social understandings of disability 233 3 Substantive equality 233 4 Unfair discrimination and affirmative action 234 5State’s positive obligations in respect of access to work 235 6 Final concluding remarks 236

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Table I:

Table II Table III:

Figure 1: Figure 2:

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Recommendations for future research

Bibliography

List of Tables

Binaries created by separation of the body from its environment Four paradigms for the study of social phenomena Four approaches to disability theory

List of Figures

Interactions between the components of the ICF Broad analytical framework to be used in the analysis of how social explanations of disability are incorporated within anti-discrimination and work creation measures

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PREFACE

The purpose of this book is to consider how the legal frameworks that aim to promote access to work for disabled persons in South Africa fare when measured against the aspirations and challenges articulated by disabled persons, Disabled Persons’ Organisations (DPOs), disability scholars, policymakers and courts of law.

This analysis is situated within a critical engagement with constitutional rights to equality, dignity and access to social security, as well as with the substantive and procedural mechanisms that have been created to give effect to these rights. It also engages with preliminary questions regarding the utility of rights discourse, as well as the parameters of different conceptions of disability used within the law.

It is hoped that DPOs, individual job applicants, trade unions, employers, community-and-faith based organisations, scholars and practitioners will find this text useful in its reflection on South African labour and social security laws’ conceptions of disability; how these conceptions, enforcement processes and structural barriers impact on disabled persons’ access to work; and the interrelationship between the substantive equality of disabled persons and social security measures that emphasise the agency of disabled persons who can and want to work.

The law is set out as it stands at 31 December 2016.

Meryl du Plessis May 2017

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ACKNOWLEDGMENTS

I would like to thank the following people:

Layla, my partner, who has not only been there through all the ups and downs, but who has actively participated with enthusiasm and grace in the writing process.

My colleagues and students at the School of Law at the University of the Witwatersrand and my previous workplaces, with a special thanks to Prof Vinodh Jaichand for his encouragement and support.

The people I have met at conferences and in the course of my work, who have inspired me and taught me about resilience and smiling in the face of adversity.

My family and friends, near and far, without whose love and support none of this would have been possible. Special thanks and appreciation to my parents, Franklin, Mercia, Alida, Kudsiya and Hassan.

Pretoria University Law Press, in particular Ms Lizette Hermann, Prof Charles Ngwena and Ms Isabeau de Meyer, who have helped to make this book a reality.

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ABOUT THE AUTHOR

Meryl du Plessis is currently a Senior Lecturer in the School of Law at the University of the Witwatersrand. She holds the degrees BCom LLB (cum laude), LLM (cum laude) (Rhodes) and PhD (Cape Town). She is also on the advisory panel for the South African Law Reform Commission Project 193: Maternity and Paternity Benefits to Self-Employed Persons. Her research interests are in the areas of labour and social security law, with particular emphasis on access to work for disabled persons, occupational health and safety and workers’ compensation.

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DEDICATION

for Layla

For all of us who have been ‘visibly invisible and invisibly visible’

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(A) (C)

ABBREVIATIONSAND ACRONYMS

(CC) (EqC) (IMSSA) (LAC) (LC) (NmS) (T) (W)

16PF

A ADA AIDS AJ AJP ANC AZAPO BALR BBBEE BCA BCEA BCLR BLLR BPS CBA CCMA CEE CJ CLoSA COIDA CRPD DLR DP DPOs DPSA EC ed(s) EE EEA EEOC ESA ESCR EWCA Civ GG

Appellate Division, now Supreme Court of Appeal Cape Provincial Division, now the Western Cape Division of the High Court Constitutional Court Equality Court Independent Mediation Services of South Africa Labour Appeal Court Labour Court Namibian Supreme Court Transvaal Provincial Division of the High Court Witwatersrand Local Division, now the South Gauteng High Court Sixteen Personality Factor Questionnaire

Arbitrator Americans with Disabilities Act Acquired Immune Deficiency Syndrome Acting Judge Acting Judge President African National Congress Azanian People’s Organization Butterworths Arbitration Law Reports Broad-Based Black Economic Empowerment Bargaining Council Arbitration Basic Conditions of Employment Act Butterworths Constitutional Law Reports Butterworths Labour Law Reports Biopsychosocial Cost-benefit analysis Commission for Conciliation, Mediation and Arbitration Commission for Employment Equity Chief Justice Constitutional Law of South Africa Compensation for Occupational Injuries and Diseases Act Convention on the Rights of Persons with Disabilities Dominian Law Reports Deputy President of the Constitutional Court Disabled person’ organisations Disabled People South Africa European Council editor(s) employment equity Employment Equity Act Equal Employment Opportunities Commission (USA) Employment Services Act Economic, Social and Cultural Rights England and Wales Court of Appeal (Civil Division) Government Gazette

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GN HIV ICESCR ICF ICIDH

ILJ ILO IMATU INDS J JA km KSAOs LLD LRA MEC MHCA NAPTOSA NEDLAC NEHAWU obo ODMWA P para(s) PEPUDA

PFA plc POPCRU PWDs RAF RPD RTW sec/s SA SAA SADC SADTU SCA SEE StatsSA TAC TAG

UIA UIF UK UN US(A) WG WHO

Government Notice Human Immunodeficiency Virus International Covenant on Economic, Social and Cultural Rights International Classification of Functioning, Disability and Health International Classification of Impairments, Disabilities and Handicaps Industrial Law Journal International Labour Organization Independent Municipal and Allied Trade Union Integrated National Disability Strategy Judge Judge of Appeal kilometres Knowledge, skills, abilities and other characteristics Legum Doctor (Doctor of Laws) Labour Relations Act Member of the Executive Council Mental Health Care Act National Professional Teachers' Organisation of South Africa National Economic Development and Labour Council National Education Health and Allied Workers’ Union on behalf of Occupational Diseases in Mines and Works Act President of the Constitutional Court paragraph(s) Promotion of Equality and Prevention of Unfair Discrimination Act Pension Funds Act public limited company Police and Prisons Civil Rights Union persons with disabilities Road Accident Fund Rights of Persons with Disabilities return-to-work sections Juta's South African Law Reports Social Assistance Act Southern African Development Community South African Democratic Teachers Union Supreme Court of Appeal Supported Employment Enterprises Statistics South Africa Treatment Action Campaign Technical Assistance Guidelines on the Employment of People with Disabilities Unemployment Insurance Act Unemployment Insurance Fund United Kingdom United Nations United States (of America) Washington Group World Health Organization

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