The right to work and employment in Southern Africa: A commentary on how selected employment laws fare against article 27 of the CRPD

Constitution of Zimbabwe

The Constitution of Zimbabwe29 contains provisions which create an obligation to provide work opportunities for persons with disabilities on an equal basis with others. The Zimbabwean Constitution contains a general equality and non-discrimination clause which prohibits discrimination on several grounds, including disability, in all spheres of life.30 Therefore, the conclusion may be drawn that the Zimbabwean Constitution prohibits discrimination on the basis of disability in the employment sector. This conclusion is further supported by the clause in the Zimbabwean Constitution dealing with labour and employment relations, which provides that government must ‘adopt reasonable policies and measures, within the limits of the resources available to them, to provide everyone with an opportunity to work in a freely chosen activity, in order to secure a decent living for themselves and their families’.31 That the Constitution of Zimbabwe intends to protect the rights of persons with disabilities to have an opportunity to work is evident in the article requiring the provision of ‘vocational guidance and the development of vocational and training programmes, including those for persons with disabilities’32 so that they may access work opportunities. The provision in the Zimbabwean Constitution which is dedicated to the rights of persons with disabilities does not expressly address the right to work and employment for persons with disabilities. It does, however, provide in a rather vague fashion that the state must take measures to enable persons with disabilities to become ‘self-reliant’.33 Although the language is vague, this provision may be construed to mean the rights to work and employment of persons with disabilities.

However, these provisions still fall short of the standard set in article 27 of the CRPD, and this fact becomes apparent when other provisions in the Zimbabwean Constitution, particularly those dealing specifically with persons with disabilities, are examined more closely. For example, article 22 of the Zimbabwean Constitution, which specifically addresses persons with disabilities, requires the government and all government institutions and agencies to ‘develop programmes ... especially work programmes’ for persons with disabilities.34 However, these work programmes must be ‘consistent with their capabilities and acceptable to them or their legal representatives.’35 The requirement for government to avail work programmes for persons with disabilities which are ‘consistent with their capabilities’ equates disability with inability and does not seem to encourage persons with disabilities to obtain work on the open market as is required by article 27 of the CRPD. This is consistent with the much-criticised medical model of disability which regards disability as a problem innate in the individual with impairment as opposed to the social model of disability, to which the CRPD espouses, according to which disability is the result of the interaction between a disabling environment and an individual with impairment. Furthermore, this provision requires the development of programmes ‘for the welfare of persons with physical or mental disabilities.’36 This means that persons with other types of disabilities, such as sensory disabilities, cannot benefit from these work programmes.37 The CRPD safeguards the right to work and employment for all persons with disabilities, not only persons with certain types of disabilities.38 Therefore, by failing to provide for persons with disabilities participating in the open labour market and by failing to include persons with all types of disabilities, the Constitution of Zimbabwe falls short of the standard set in article 27 of the CRPD.

Labour Act (Chapter 28:01)

The Labour Act,39 the principal Act defining the fundamental rights of employees in Zimbabwe, contains provisions which create equal work opportunities for persons with disabilities. The Labour Act contains an equality and non-discrimination clause intended to provide for the creation of opportunities for work and employment of persons with disabilities. This Act prohibits discrimination against employees on several grounds, including disability.40 Discrimination is prohibited in relation to various matters of employment, including job advertisement;41 the recruitment process;42 the creation, classification or abolition of jobs or posts;43 the determination of wages and other benefits;44 and ‘the choice of persons for posts, training, advancement, apprenticeships, transfer, promotion or retrenchment’.45 However, provisions prohibiting non-discrimination alone are not enough to meet the standard set in article 27 of the CRPD. The Labour Act, apart from prohibiting discrimination on the basis of disability in the employment sector, does not require the taking of any other positive steps, such as affirmative action or the provision of reasonable accommodation in order to ensure that persons with disabilities are provided with an opportunity to work on an equal basis with others. Since this is the principal Act dealing with matters of work and employment in Zimbabwe, this is a fundamental failure.

Disabled Persons Act Chapter 17:01

Similarly, although the Disabled Persons Act,46 the main Act for persons with disabilities in Zimbabwe, contains provisions intended to create equal work opportunities for persons with disabilities, the Act still falls short of the article 27 standard. The Disabled Persons Act expressly prohibits discrimination against persons with disabilities in employment47 in order to provide for equal opportunities to work and employment. The Act prohibits employers from discriminating against persons with disabilities in relation to ‘the advertisement of employment’;48 ‘the recruitment for employment’;49 ‘the creation, classification or abolition of jobs or posts’;50 ‘the determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits;51 ‘the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment’;52 ‘the provision of facilities related to or connected with employment’;53 and ‘any other matter related to employment’.54 However, as stated earlier, provisions which simply prohibit discrimination are not enough to adequately protect the right to work and employment for persons with disabilities as laid out in article 27 of the CRPD. It is necessary to make provision for other positive steps or measures to protect the right to work.

Interestingly, the Disabled Persons Act does not require the provision of reasonable accommodation. Instead, the Act effectively states that, where an employer has not provided reasonable accommodation, they will not be deemed to have discriminated against the person with a disability.55 This is contrary to the definition of disability discrimination contained in the CRPD, which defines disability discrimination as including the denial of reasonable accommodation.56 This may be attributed to the fact that the Act is outdated, since it was enacted as far back as 1992. Therefore, in failing to make provision for the taking of positive steps to ensure that persons with disabilities have equal opportunities to work and in failing to require the provision of reasonable accommodation, the Disabled Persons Act falls short of the article 27 standard.

Constitution of Zimbabwe

The Constitution of Zimbabwe contains provisions which create an obligation on employers to provide an open, inclusive and accessible work environment for persons with disabilities. Article 65 of the Zimbabwean Constitution deals with labour rights and requires the provision of measures intended to provide a safe and healthy working environment. Employers are required to ensure that safe labour practices and standards are in place, and it also provides for the right of employees to receive a fair and reasonable wage,57 to form and join trade unions and to take part in their activities,58 to strike, sit in or withdraw their labour,59 and the right to ‘just, equitable and satisfactory conditions of work’.60 Although this provision does not make specific reference to persons with disabilities, the term ‘every person’ impliedly includes persons with disabilities.

In line with article 27(2) of the CRPD, the Zimbabwean Constitution provides for freedom from slavery or servitude, providing that ‘[n]o person may be subjected to slavery or servitude’.61 The Zimbabwean Constitution also provides for freedom from forced or compulsory labour, stating that ‘[n]o persons may be made to perform forced or compulsory labour’.62 In this regard, the Constitution of Zimbabwe contains provisions which are in line with the article 27 standard.

Constitution of Angola

There are provisions in the Constitution of Angola64 which create an obligation to provide equal work opportunities for persons with disabilities. However, the Constitution still falls short of the article 27 standard. The Constitution of Angola prohibits discrimination on a number of grounds, including disability and65 in a number of spheres, including the sphere of employment. The Angolan Constitution declares that ‘[w]ork shall be the right and duty of all’.66 The Constitution goes on to place an obligation on government to promote the ‘implementation of policies to generate work’67 and equal ‘opportunities in the choice of profession or type of work and conditions which prevent preclusion or limitation due to any form of discrimination’.68 Since the Angolan Constitution prohibits discrimination on the ground of disability, it may be concluded that the obligations placed on the government to create opportunities for work also apply to the creation of work opportunities for persons with disabilities.

Article 83 of the Constitution of Angola, which deals specifically with persons with disabilities, requires the state to ‘foster and support special education and technical and vocational training for disabled citizens’.69

The Constitution, therefore, has a general anti-discrimination provision as well as a general declaration that all persons are entitled to the right to work, but does not really contain positive measures, such as the quota system70 or affirmative action, which may be taken in order to ensure that persons with disabilities actually enjoy equal opportunities to the right to work and employment. Furthermore, it does not provide for the provision of reasonable accommodation for persons with disabilities. In this regard, therefore, it falls short of the CRPD standard.

General Labour Law 2000

The General Labour Law of Angola71 contains a provision which may be taken to be intended for the creation of equal work opportunities for persons with disabilities. In spite of this, the law still falls short of the standard set in article 27 of the CRPD. The Law contains a provision on the right to work and on the prohibition of discrimination in the employment sector on various grounds. However, disability is not mentioned as one of these grounds.72 Nevertheless, it may be concluded that disability discrimination is prohibited, particularly in light of the fact that the Constitution, which is the supreme law of the land, prohibits disability discrimination. The Law fails to meet the standard set in article 27 of the CRPD as it fails to provide for the taking of positive measures as well as the provision of reasonable accommodation in order to ensure that persons with disabilities have equal work opportunities.

Constitution of the Republic of South Africa, 1996

The Republic of South Africa has laws in place which provide for equal work opportunities for persons with disabilities. The Constitution of South Africa76 prohibits direct and indirect discrimination on several grounds, including disability.77 The Constitution goes on to state that ‘[e]very citizen has the right to choose their trade, occupation, or profession freely’.78 Article 7(2) of the Constitution provides that the state must ‘respect, protect, promote and fulfil’ the rights which are contained in the Bill of Rights, including the right to work and employment. This provision may be construed to be impliedly creating a duty to put positive measures in place in line with article 27 of the CRPD.

The Employment Equity Act

The purpose of the Employment Equity Act79 is to ‘achieve equity in the workplace’.80 Such equity is to be achieved by, first, ‘promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination’81 and, second, by ‘implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups’.82 The Act applies to all employees except members of the National Defence Force, the National Intelligence Agency and the South African Secret Service.83 The Employment Equity Act contains a provision prohibiting unfair discrimination, both direct and indirect, on a number of grounds, including disability.84 It places a duty on employers to ‘take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice’.85 This is in line with article 27 of the CRPD.

Constitution of South Africa

There are provisions in the South African Constitution which create an obligation for employers to provide an open, inclusive and accessible environment. The provision dealing with labour relations in the Constitution protects the right to form and join a trade union86 as well as the right to strike.87 This is in line with article 27 of the CRPD. Since the Constitution of South Africa prohibits discrimination on the basis of disability,88 it is implied that this provision applies to persons with disabilities even though such persons are not expressly referred to in the provision.

In line with article 27 of the CRPD, the Constitution of South Africa states that ‘[n]o one may be subjected to slavery, servitude or forced labour’.89

Employment Equity Act

Part III of the Employment Equity Act addresses the provision of affirmative action measures, which are defined as ‘measures designed to ensure that suitably-qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer’.90 It is important to note that, according to this Act, persons with disabilities fall under the category of ‘designated groups’.91 The provision of reasonable accommodation is also encapsulated within the provision on affirmative action measures.92 Providing for reasonable accommodation is important because, in the absence of a duty to reasonably accommodate persons with disabilities, the creation of an open, inclusive and accessible work environment cannot be achieved. The Act goes on to clarify that the taking of positive measures, such as affirmative action measures, does not constitute unfair discrimination.93 This is in line with the standard in article 27 of the CRPD.

Furthermore, section 54(1)(a) of the Employment Equity Act gives the Minister power to issue codes of good practice which give guidance to employers on how to implement the Act. Of particular relevance is the Code of Good Practice: Key Aspects on the Employment of People with Disabilities issued in terms of the EEA.94 The Code deals with pertinent issues, such as the provision of reasonable accommodation;95 recruitment and selection;96 training and career advancement;97 retaining people with disabilities;98 and termination of employment,99 amongst other things. Despite the fact that the Code is more of a policy document than a piece of legislation, it remains important as it must be considered when courts and tribunals are interpreting the Employment Equity Act. The matters addressed in the Code, such as the provision of reasonable accommodation, are generally in line with article 27 of the CRPD.

Labour Relations Act 66 of 1995

Further provision is made for the creation of an open, inclusive and accessible working environment in the Labour Relations Act,100 which provides for several rights, such as joining a trade union.101 The Act uses language such as ‘every employee’, implying that persons with disabilities are also included within the ambit of the provision. Furthermore, dismissal on the ground of disability is automatically deemed as unfair dismissal.102 The Act makes reference to the duty to accommodate in relation to situations where employees are injured in the workplace.103 Although this is in line with the CRPD, it falls short of the standard set therein, since all persons with disabilities are entitled to have reasonable accommodation made on their behalf in order to enable them to enjoy the right to work and employment on an equal basis with others.

Basic Conditions of Employment Act 75 of 1997

The Basic Conditions of Employment Act104 deals with matters such as the regulation of working time;105 leave;106 remuneration;107and termination of employment,108 amongst others. The Act applies to all employees and employers.109 By implication, therefore, from the language used, the provisions in the Act also apply to persons with disabilities.

Code of Good Practice on Equal Pay or Remuneration for Work of Equal Value

The Code of Good Practice on Equal Pay or Remuneration for Work of Equal Value110 was issued in terms of the Employment Equity Act. One of the objectives of this Code is to ‘provide practical guidance to employers and employees on how to apply the principle of equal pay/remuneration for work of equal value in their workplaces’.111 The aim of the Code is to overcome the disadvantages which have been suffered by historically-marginalised groups, including persons with disabilities, in the workplace. The Code states that ‘[a] difference in pay/remuneration will only be unfair discrimination if the differences are directly or indirectly based on race, sex, gender, disability or any other listed or on any other arbitrary ground’.112 The Code, therefore, protects persons with disabilities from being discriminated against in relation to pay/remuneration. This is in line with article 27 of the CRPD.

In South Africa, therefore, there is no single piece of legislation which alone meets the article 27 standard. Nevertheless, the different pieces of legislation in combination can be said to meet the article 27 standard.

Constitution of Botswana

The Constitution of Botswana114 falls short of the standard set in article 27 of the CRPD. Although the Constitution does not expressly list disability as one of the grounds upon which discrimination is prohibited, it does contain a clause providing for protection from discrimination on several grounds.115 It is important to note that prohibiting non-discrimination alone does not ensure that persons with disabilities have equal work opportunities. There is a need to make provision for positive steps, such as affirmative action or the use of the quota system, to ensure that persons with disabilities have equal access to opportunities for work.

Constitution of Botswana

In line with article 27 of the CRPD, the Constitution of Botswana provides for protection from slavery and forced labour.116

Employment Act Chapter 47:01

The Employment Act117 regulates all matters pertaining to employment, such as forced labour;118 protection of wages;119 rest periods; working hours; holidays; and other conditions of work.120 Section 120 deals with ‘regulations in relation to employment of infirm or handicapped persons’. This section gives the Minister the power to ‘make regulations in relation to the employment of persons affected by infirmity or physical handicap and, without prejudice to the generality of the foregoing, such regulations may regulate the conditions under which such persons are employed for the purpose of safeguarding their interests’. This provision suggests that the main provisions of this Act do not equally apply to persons with disabilities. It simply requires the Minister to produce provisions for ‘handicapped persons’. It goes without saying, therefore, that this Act falls short of the article 27 standard in that it fails to put in place measures to ensure that persons with disabilities have an open, inclusive and accessible work environment. Even if the provisions in the Act dealing, for example, with rest periods and working hours, are deemed to also apply to persons with disabilities, the Act would still fall short of the article 27 standard as it fails to include measures necessary for the creation of an open, inclusive and accessible work environment.

There are other Acts dealing with matters of work and employment, including the Trade Unions and Employers’ Organisations Act Chapter 48:01121 and the Vocational Training Act Chapter 47:04.122 However, neither of these Acts makes specific reference to persons with disabilities. This illustrates that Botswana laws do not meet the article 27 standard in as far as they fail to make provision through legislation for the right of persons with disabilities to work and employment.

Swaziland Constitution 2005

The Constitution of Swaziland124 contains provisions relating to work and employment. However, these provisions do not meet the article 27 standard. The Constitution prohibits discrimination on a number of grounds, including disability.125 This means that disability discrimination in the employment sector is prohibited by the Swaziland Constitution. The provision in the Constitution dealing with the rights of workers states that ‘[a]person has the right to practise a profession and to carry on any lawful occupation, trade or business’.126 The language used in this provision suggests that it applies to all people, including persons with disabilities. Nevertheless, the standard in article 27 has not been met. As stated earlier, the prohibition of discrimination and a declaration that all people have the right to work are inadequate for the protection of the right to work and employment for persons with disabilities. Some positive measures need to be taken in order to ensure that persons with disabilities actually have equal opportunities for work.

Employment Act 1980

The Employment Act127 also fails to meet the standard set in the CRPD. The anti-discrimination clause in the Act lists a number of grounds upon which employers may not discriminate, but disability is not one of these grounds.128 Persons with disabilities are not specifically mentioned in this Act. The provision does not contain a ‘catch-all’ phrase such as ‘or other status’ under which persons with disabilities might fall. This is an indication that the provisions in the Act are not mindful of persons with disabilities. The Act, therefore, omits to include important measures which are necessary for ensuring equal opportunities for work, such as quota systems and affirmative action. The Act, therefore, falls short of the article 27 standard.

Constitution of Swaziland

Article 32 of the Swaziland Constitution deals with the rights of workers. It provides for the right to ‘freely form, join or not to join a trade union for the promotion and protection of the economic interests of that worker’129 and the right to ‘collective bargaining and representation’.130 Article 32 also requires the enactment of laws to ‘provide for the right of persons to work under satisfactory, safe and healthy conditions’;131 to ‘ensure equal payment for equal work without discrimination;132 to ‘ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay as well as remuneration for public holidays’;133 and the protection of employees ‘from victimisation and unfair dismissal or treatment’.134 In line with article 27 of the CRPD, the Constitution provides for protection from slavery and forced labour.135 The language used in the Constitution indicates that the provisions also apply to persons with disabilities. However, the article 27 standard is still not met in the Constitution as important measures, such as the requirement to reasonably accommodate, have not been included and, without these measures, the right to work and employment for persons with disabilities will not be adequately protected.

Industrial Relations Act 2000

The Industrial Relations Act136 regards dismissal based on disability discrimination as automatically unfair.137 This Act, however, still falls short of the article 27 standard as it does not make provision for conditions during employment of persons with disabilities. The Act also fails to require reasonable accommodation, which may be relevant to the question of unfair dismissal. For example, an employer may terminate the employment of a person with a disability because of claims that the employee is not doing the work satisfactorily, when in fact the lack of reasonable accommodation could be a contributing factor as to why the employee is not performing to the standard required.

Wages Act 1964

The Wages Act138 applies to all workers. Although it does not make specific reference to workers with disabilities, it may be implied that these workers are covered in the section under the term ‘all workers’. This Act does not make specific reference to persons with disabilities. This is a missed opportunity, since persons with disabilities have historically been disadvantaged as far as wages are concerned, by being paid less than other workers. The provisions in this Act were, therefore, not crafted with persons with disabilities in mind and fall short of the article 27 standard.