When accommodation of disabilities meets accountability for misconduct

Section 6 (1) of the Employment Equity Act 55 of 1998 (EEA), as amended, provides that no person may unfairly discriminate, directly or indirectly, against any Employee in any employment policy or practice. Such discrimination includes 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 any other arbitrary ground.

On 18 March 2022, the Minister of Employment and Labour issued the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. This Code was created to develop and expand the protection afforded in terms of the EEA. The implementation of the Code was designed to enhance and include specific types of harassment, which previously had very limited application and protection. Section 4.7.5.7 of the Code makes particular reference to the kind of harassment that is strictly prohibited, known as:

“Intolerance of psychological, medical, disability or personal circumstances”

In Holland v CCI SA (Pty) Ltd (2024) 10 BALR 1070 (CCMA), a Commissioner had to determine the fairness of a dismissal whereby the Employee’s argument had to be considered in terms of the new Harassment Code. The Employee in this matter was a disabled person. During the interview process, her disability was disclosed to the Employer. Therefore, everything was “above board” because the Employer was aware of her disability and the requirements that arose therefrom. The Employee commenced work; however, she was absent from work for several days without authorisation or notifying her Employer of her absence. Naturally, like any other Employee in the workplace, disciplinary action followed her misconduct. The Employee claimed that the Employer discriminated against her on the basis that her Employer knew about her disability and that she suffered severe depression as a result of a motor vehicle accident in which her leg was injured. The Employee argued further that her Employer failed to reasonably accommodate her based on her disability.

The Respondent denied any allegations of discrimination but rather argued that the Employee had failed to utilise the ‘Employee Assistance Programme’ that was made available to her. It was further identified that the Employee had been dishonest during the interview process about the extent of her disability and its effects in order to secure her getting the job.

Ultimately, the Employer proved that they had considered and applied the Code of Good Practice on Harassment and had not discriminated against the Employee. The Employee’s dismissal was for frequent unauthorised absences, which was a disciplinary issue, not a discrimination issue.

What is important to take from this case is twofold. First, Employers must intensely determine the extent of a person’s disabilities and the challenges that may come from them at the appointment stage to avoid any uncertainty about time off. Second, while taking an Employee’s disability into consideration, Employers must ensure that they do not discriminate on the basis of disability and consider the Code of Good Practice on the Prevention of Harassment in the workplace.

Employers must evaluate and consider Employees’ disabilities in the workplace. However, they have an obligation to apply their disciplinary code consistently in the workplace, despite Employees’ disabilities or differences.

Written by Tammy Barnard, Senior Dispute Resolution Official, CEO SA