Abstract

GRESSE, E  and  GRESSE, W. A Legal Conundrum - The Duty to Reasonably Accommodate: A Comment on Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC). PER [online]. 2024, vol.27, n.1, pp.1-37. ISSN 1727-3781.  http://dx.doi.org/10.17159/1727-3781/2024/v27i0a14641.

Persons with disabiliites are a historically marginalised minority, but they do possess the capacity to make a valuable contribution in the workplace. Disabilty in no way dimisses the right of individuals to be employed and to make a contribution to the labour market and the economy at large. Recent case law suggests that the duty to reasonably accommodate disabled respondents remains a conundrum for both respondents and employers in South Africa. In Legal Aid South Africa v Jansen 2020 41 ILJ 2580 (LAC) the Labour Appeal Court (LAC) overturned a judgment by the Labour Court that found that Legal Aid unfairly discriminated against a respondent with depression. In 2018, the Labour Court ordered Legal Aid to reinstate Mr Jansen in that it had acted unfairly as his depression was most likely the true cause for his misconduct. On appeal, the LAC emphasised that in order to prove automatic unfair dismissal an applicant must prove both factual and legal causation. The LAC further found that the most dominant reason for Mr Jansen's dismissal was his misconduct and not his depression. Nonetheless, the LAC emphasised that depression is a prevalent illness in the current work environment and that all employers have a duty to deal with depression in a sympathetic manner and were reminded of their obligation to investigate the disability fully, to consider reasonable accommodation and to consider alternatives short of dismissal. Respondents were also reminded of the fact that they need to co-operate with their employers. Whilst South Africa has made significant progress in enacting legislation, codes, and guidelines to lay the foundation for reasonable accommodation, role-players, with specific reference to employers and the judiciary, often overlook these detailed guidelines, especially in cases where the employee suffers from depression. Disabilty is often used interchangeably with incapacity, which is problematic. This article argues that employers should follow a broad interpretation of the guidelines contained in the Code of Good Practice: Key Aspects on the Employment of People with Disabilities (2002), as well as the Technical Assistance Guidelines. Multi-party consultations and investigations need to be conducted, with the assistance of experts, if needs be. It is further suggested that until South Africa has targeted legislation and policies which make disability management functions mandatory, reasonable accommodation will remain a conundrum.

Keywords : Disability; reasonable accommodation; persons with disabilities; depression; incapacity.

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