- Title
- Unfair discrimination relating to mental illness
- Creator
- Skosana, Hlengiwe
- Subject
- Discrimination -- Mental health
- Date Issued
- 2020
- Date
- 2020
- Type
- Thesis
- Type
- Masters
- Type
- LLM
- Identifier
- http://hdl.handle.net/10948/47443
- Identifier
- vital:39991
- Description
- Section 9 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to equality. The Employment Equity Act, the Promotion and Prevention of Unfair Discrimination Act and the Labour Relations Act were promulgated to fulfil the Constitution’s goals of promoting equality and prohibiting unfair discrimination. Section 6(1) of The Employment Equity Act promotes equality in the workplace and prohibits unfair discrimination; section 187 of the Labour Relations Act provides that dismissals on the grounds listed in the section are automatically unfair; and section 6 of the Promotion and Prevention of Unfair Discrimination Act prohibits unfair discrimination in general. International law prohibits unfair discrimination. Article 1 of the International Labour Organisation’s Convention concerning Discrimination in Respect of Employment and Occupation provides that discrimination in the workplace that has the effect of impairing or nullifying equal opportunity or treatment is prohibited; Article 7 of the United Nations Declaration of Human Rights provides that all are equal before the law and are entitled to protection against any discrimination; and the United Nations Charter and the African United Charter on Human and People’s Rights both promote the right to equality. South Africa has signed and/or ratified these international anti-discrimination laws, and is, accordingly, bound by them. The South African anti-discrimination legislation and international anti-discrimination laws prohibit unfair discrimination, whether it is direct or indirect, or on a listed (that is, a specified ground such as race or disability) or unlisted ground, on a policy, rule or practice. Discrimination based on a listed ground is presumed to be unfair. If discrimination is based on an unlisted ground, the complainant must prove that the discrimination is unfair by applying the Harksen v Lane NO 1997 (11) BCLR 1489 (CC) test. The Harksen v Lane NO test asks whether the discrimination has the attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner. If the answer is yes, the discrimination is unfair. Mental illness is not a listed ground, meaning it is unlisted. The Labour Appeal Court and Labour Court have, therefore, had to consider whether discriminating against an employee on the basis of their mental illness is unfair, or dismissing them because of their mental illness constituted an automatically unfair dismissal. In the leading case of New Way Motor & Diesel Engineering (Pty)Ltd v Marsland [2009] 12 BLLR 1181 (LAC), the Labour Appeal Court applied the Harksen v Lane NO test and held that the employee’s dismissal was automatically unfair in terms of section 187(1)(f) of the Labour Relations Act. In the recent case of Jansen v Legal Aid South Africa (JA121/2014) [2018] ZALCCT 17, the Labour Court agreed with the Labour Appeal Court decision in New Way Motor & Diesel Engineering (Pty) Ltd v Marsland that dismissing an employee because of their mental illness is automatically unfair in terms of section 187(1)(f) of the LRA, and unfair discrimination in terms of section 6(1) of the EEA. Despite the consistency in case law, the anti-discrimination legislation does not list mental illness as an unfair ground, which means unfairness cannot be presumed. The complainant must, accordingly, prove the dismissal is automatically unfair in terms of section 187(1)(f) of the LRA or that it is unfair discrimination in terms of section 6(1) of the EEA.
- Format
- vii, 63 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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NMU Department of Private Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Skosana, H 207030497 Treatise April 2020.pdf | 901 KB | Adobe Acrobat PDF | View Details Download |