Abstract

Keywords

Reasonable accommodation; cancer; employee; right to privacy; disability; employer; discrimination; substantive equality

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1 Introduction

The duty which is placed on employers to provide reasonable accommodation is a non-discriminatory mechanism in its constitutional form, and a juridical tool which is aimed at achieving substantive equality among people;1 and in this context, specifically employees with cancer. The principle of reasonable accommodation serves as an integral part of and is the justification for direct or indirect discrimination which is fair. This is due to the fact that reasonable accommodation gives recognition to equality. This principle recognises that in order to achieve equality among people, it might be necessary to treat people differently.2 In broad terms, reasonable accommodation entails taking positive steps in order to meet the needs of people who suffer from physical or psychological conditions which other people may not experience. If an employer takes positive steps to reasonably accommodate employees with disabilities, the employer cannot be viewed as acting discriminatorily; but instead his or her actions should be considered as positive steps taken towards eliminating any form of discrimination in the workplace. An employer must not violate the right to privacy of the employee with the disability while making such accommodations, the employee having disclosed his or her medical condition to the employer voluntarily and not as a legal duty. The employer must not use the information about the medical condition of the employee in an arbitrary manner which is unrelated to the duty to reasonably accommodate the employee, because this will amount to a violation of the right to privacy of the concerned employee.

2 The rationale for and the foundation of the duty of the employer to reasonably accommodate employees with cancer

In as much as employers are required to embrace diversity in the workplace, they are not expected to incur undue hardships in the process of embracing diversity.3 The type of reasonable accommodation required will depend on the nature and essential functions of the job, the work environment and the nature of the specific impairment experienced by each individual concerned.4 Reasonable accommodation on the part of the employer is

based on three interrelated criteria which justify its purpose. Firstly, it must effectively remove the barriers or obstacles which prevent an individual employee who is otherwise qualified from being able to carry out his or her duties.5 Secondly, the accommodation must allow the individual employee with a disability to enjoy equal access to the benefits and opportunities of employment, such as the right to promotion in the workplace.6 Thirdly, employers can adopt the most cost-effective means which is consistent with the two criteria outlined above.7

These three criteria serve as yardsticks for use in determining if the duty to provide reasonable accommodation has been fulfilled on the part of the employer. In such consideration the court will take into account the rational and proportional relationship between the measure employed and the purpose it seeks to achieve,8 which in the context of this study is to make it possible for employees with cancer to continue working, despite their medical condition, and to overcome any effect which their condition may possibly have on their ability to work.

In the court case of MEC for Education, Kwazulu Natal v Pillay,9 the Constitutional Court stated that:

… reasonable accommodation requires that the employer must take positive measures such as removing access barriers, even if it means incurring additional hardships or expenses to ensure that all employees enjoy their right to equality.10

In the light of the above, Bernard argues that the duty of reasonable accommodation on the part of employers could either be positive, such as making alterations to the working environment to enable the employee with disability to work, or it could be negative, in cases where financial hardships can be incurred by the employer to effect the necessary alterations in the workplace in order to achieve equality in the workplace through reasonable accommodation.11 Bernard also notes that the duty on the part of employers to reasonably accommodate employees is not absolute in the sense that no

court can expect an employer to excessively incur expenses if it cannot reasonably accommodate the employee due to his or her state of health.12

Reasonable accommodation aims to balance the interests of the employer and the employee concerned by ensuring that there is equity in employment, in order to avoid a situation where one party benefits at the expense of the other. This conclusion is inherent in the dictum that for the accommodation to be reasonable there must be a rational connection between the measure being employed to provide such accommodation and the purpose which it seeks to achieve.

In Department of Correctional Services v POPCRU13 the court found that there was no justification for the claim to reasonable accommodation on the basis that there was no relationship between the measure and the purpose which the measure sought to achieve.14 This case involved a work policy in the Correctional Services Department which prohibited women from having dreadlocks in the workplace.15 However, all the employees, both male and female, were expected to wear similar clothing because the policy on uniform was the same for both genders except in regard to the hairstyle of female employees.16 The Department argued that the restriction applicable to female employees was justified as if they wore long hair such as dreadlocks this would put them at risk of being easily harmed by prison inmates.17 The rebuttal was that short hair for female employees was not an inherent requirement for the job in terms of section 187(2) of the Labour Relations Act 66 of 1995.18

It was found that the employees were still exemplary officers despite wearing their hair in dreadlocks.19 No evidence was submitted that the employees were less disciplined or performed their duties poorly as a result of their hairstyles. The discriminatory prohibition on dreadlocks was therefore found to be unfair, disproportionate and overly restrictive.20 The court held that:

[a] refusal to reasonably accommodate diversity and the lack of rationality in its measure aimed at the legitimate purpose of discipline, security and uniformity leads inescapably to the conclusion that the discriminatory prohibition on dreadlocks was unfair, disproportionate and overly restrictive.21

The abovementioned case clearly displays the extent of the operation of the duty to provide reasonable accommodation on the basis of diversity, although it was denied by the employer in this case.

Reasonable accommodation is a non-discriminatory principle in the sense that it ensures that employment equity is upheld in the workplace. Section 15(1) of the Employment Equity Act makes room for the designated employer to implement affirmative action measures in order to ensure that all suitably qualified people from designated groups are represented in all categories of employment in the workplace.22 However, reasonable accommodation is not an affirmative action measure, although it can be used to ensure that equity is maintained in the workplace. Reasonable accommodation and affirmative action measures share similar goals such as to ensure that substantive equality is achieved in the workplace, but they are two different concepts which should not be mistakenly construed as one.23

Furthermore, section 5 of the Employment Equity Act provides that every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice.24 Section 15(2)(c) of the Employment Equity Act places a duty on employers to ensure that they provide reasonable accommodation for employees living with disabilities. The aim of such accommodation is to reduce the impact of the impairment on the person's capacity to fulfil the essential functions of the job, and ensure that there is a culture of equity in the workplace.25 The duty of employers to reasonably accommodate employees emanates from section 9(2) of the Constitution of the Republic of South Africa (hereafter referred to as the Constitution), which states that equality entails the full and equal enjoyment of all rights and freedoms by all persons. As such, legislative and other measures designed to protect or advance people or categories of people who are disadvantaged by unfair discrimination may be implemented with an aim to promote the spirit of equality in the

workplace.26 This is what is referred to as substantive equality, which simply means treating people equally while taking their background into account.

In the Constitutional Court case of Minister of Finance v Van Heerden,27 the court reasoned that the legislation pertaining to substantive equality recognises that besides the uneven race, class and gender attributes of our society, there are other levels and forms of social differentiation and systemic privilege which still exist.28 The role of the Constitution is to enjoin us to dismantle them and to prevent the creation of new patterns of disadvantage. It is therefore important for the courts to scrutinise the complainants' situation in society in each case of equality claims. Furthermore, the courts should inquire into the complainants' history and vulnerability, as well as the history, nature and purpose of the discriminatory practice concerned, and whether it ameliorates or adds to the disadvantage experienced by a group in a real-life context, in order to determine its fairness in the light of the values of our Constitution.29 In the assessment of fairness or otherwise, a flexible but situation-sensitive approach is necessary because of the shifting patterns of harmful discrimination and the stereotypical response in our evolving democratic society. The enquiry into unfair discrimination takes place in several stages, as outlined above.30

Therefore, in the context of patients with cancer as employees, their medical condition must not be isolated in assessing whether or not the employer has discriminated against them, because all employees are entitled to equality.31 Employees with cancer are also protected by the Employment Equity Act, as they may experience long-term or short-term impairment as a consequence of the side-effects of the treatment administered to them. At times, cancer treatment such as chemotherapy may render patients unable

to perform their duties effectively and result in their being categorised as being afflicted with a disability in terms of the Employment Equity Act.32

The question of whether a disease such as cancer amounts to a disability for the purposes of the Employment Equity Act has not been tested in our courts. However, people who suffer from HIV/AIDS and are thereby rendered unable to work can claim a disability grant under the Social Assistance Act.33 It is possible to argue that since cancer has the potential to leave a person with a temporary or permanent disability in the form of a physical or a psychological impairment, then a person living with cancer could become unable to work and could surely claim a the grant under the Social Assistance Act, like a person with HIV/AIDS.34 Whether cancer or HIV/AIDS amounts to a disability is a question of fact which will be determined by a court of law on the basis of the facts of each case, including the effect of the disease on the overall health of the individual. However, only time will tell whether health conditions such as cancer will be recognised as disabilities in our law. In England and the USA cancer is recognised as a progressive disease which can render an employee unable to work. and it thus amounts to a disability.35 In those jurisdictions the law has responded to the societal challenge of cancer and hence its recognition as a progressive condition which can result to a disability.

After the cancer has developed, the inability of an employee with cancer to perform his or her duties is likely to be influenced by a number of factors such as the employee's age, the stage at which the cancer was diagnosed,

the financial status and level of education of the patient, the physical demands of the job, and the presence of any other disease in the employee's body.36 The reason for outlining these factors is that in certain instances employees with cancer can resume work after treatment and can even seek further employment.37 However, in the case of physically demanding jobs, the position may be different.38 Most employees with cancer who return to work appear to be those who are highly knowledgeable, skilled and well-educated.39 Employees with cancer who don't know their rights regarding fair labour practice may be confronted with harsh and abusive circumstances when they return to work, owing to their lack of education and prior experience of the new circumstances.40 Consequently, a large number of these uneducated employees end up by not returning to work, taking early retirement, or simply changing jobs.41

The issue of reasonable accommodation is relevant to jobs which are physically demanding as well; because reasonable accommodation would obviously be necessary in jobs which require physical skills and strength. It would be reasonable and justifiable not to put an employee with cancer in a physically demanding job. When it comes to providing reasonable accommodation on the part of employers, the major problem area has to do with employees with cancer.42 They are usually reluctant to request reasonable accommodation because they are afraid of appearing as different; and also experience feelings of fear about their ability to work. Employees with cancer also fear having to disclose their health status as they anticipate that such disclosure will result in the violation of their right to privacy, as will be discussed below.43 Some of these difficulties may be attributed to the fact that employees with cancer tend to not want to become a burden to the employer due to their condition. In this regard employees with cancer have common feelings which they may experience as feelings of guilt.44 They are encouraged to overcome these negative emotions, because there is a legal duty that rests on the employer to accommodate their needs.45 This paper is aimed at emphasising that employees with

cancer do not have to feel that the employer is doing them a favour by providing reasonable accommodation, because in actual fact this is a legal duty which rests on the employer, provided that the cancer renders the employee unable to work, as outlined above.46

3 The essentials of the duty of the employer to provide reasonable accommodation in a general context

The following paragraphs will be dedicated to discussing the main elements of reasonable accommodation in order to grasp understand the notion as it is defined in our law. Furthermore, the focus will shift slightly to highlight the role of knowledge in inducing the employee to claim the right to reasonable accommodation in the workplace. It is recognised that knowledge is power, and it is thus essential for all affected parties to understand what is required of them and to what extent they are protected by law. This discussion is aimed at establishing the exact nature and process of reasonable accommodation, especially in its practical rather than theoretical form.

3.1 The meaning of reasonable accommodation

The question of what precisely constitutes reasonable accommodation on the part of the employer has not been adequately tested in the Labour Courts.47 However, it may suffice to say that reasonable accommodation constitutes the act of making existing facilities more easily accessible; adapting existing equipment or acquiring new equipment for the purpose; re-organising workstations; providing specialised supervision; and restructuring work distribution, so that non-essential functions can be redirected to other people.48 In a nutshell, reasonable accommodation refers to making the necessary changes in the workplace in order to ensure that an employee can perform his or her core employment duties effectively. It ought to be noted that the obligation which rests on the employer to provide reasonable accommodation is not absolute. This duty need not be fulfilled if it will cause the business of the employer to suffer.49 This means that the employer will not need to make reasonable accommodation if the provision

thereof is found to be contrary to the operational needs or requirements of the company.50

The principle of reasonable accommodation was considered in Kievits Kroon Country Estate v Mmoledi.51 In this case the employee was dismissed from work after taking leave for the purposes of training to be a traditional healer.52 The employee applied for unpaid leave but the employer refused to grant the leave regardless of the employee's having submitted all the necessary documents pertaining to her initiation in support of her leave application.53 Upon her return to work the employee was subjected to a disciplinary hearing and she was dismissed for misconduct on the basis that she acted unlawfully by absconding from work without the approval of the employer.54 The employee took the matter to the CCMA, where the commissioner found the conduct of the employer to be unlawful, due to the fact that he did not exercise empathy towards and understanding of the cultural background of the employee. Therefore, the employer's refusal to grant the employee unpaid leave amounted to a failure to provide reasonable accommodation.55 On review, the Labour Court found that the decision of the commissioner in favour of the employee was reasonable and dismissed the review application that had been initiated by the employer.56 The matter was taken on appeal to the Labour Appeal Court. The court held that both parties were required to be realistic in relation to each other in order to ensure harmony in the employer–employee relationship, and to achieve a united society.57 Accommodating one another was nothing other than asserting the spirit of "Ubuntu", which was part of the heritage of our society, and which ought to be upheld in all relationships. Accordingly, the appeal was dismissed with costs, on the basis that the employer failed to accommodate the employee's cultural and religious practices by refusing to grant her leave to undergo this practice.58

According to the approach adopted by the courts, employers ought to appreciate the kind of society in which we live. As there is a rapid increase

in the number of persons living with cancer; it is vital for employers to pay attention to this reality and for employees to also understand that they are obliged to do only what they reasonably can to accommodate them. In the case sketched above, it is clear that the court ruled in favour of the employee because the employer failed to reasonably accommodate the cultural beliefs of the particular employee. In the context of an employee with cancer, the courts are likely to find that an employer would be acting unreasonably if he or she were to fail to recognise that a particular employee with cancer required extended leave for the purposes of obtaining therapy and treatment.

The aspect of reasonable accommodation was best summed up in the court case of Ontario Public Services Employees Union v Ontario (Ontario Human Rights Commission),59 in which it was held that the most appropriate reasonable accommodation is one that definitely respects the dignity of the individual with a disability; one that meets the individual's needs; one that best promotes the integration and full participation of the individual concerned; and one that ensures that confidentiality is well maintained throughout.60 Therefore, by accommodating an employee in this way the rights to equality and human dignity are effectively restored and upheld by the employer.61 As this paper is aimed at ensuring that employees with cancer neither lose their right to enter into any form of occupation nor have their human dignity violated in the process, this paper endorses the description of what is termed appropriate accommodation as described in the Ontario case above.62 The principle which is derived from this case is that basic knowledge and understanding of cancer is important in order to ensure that equity and human dignity is restored in the workplace, as protected by the Constitution.63 In addition, employees also need to have knowledge of and understand the contents of their right to be reasonably

accommodated by the employer, as this forms a constituent part of ensuring that their rights are effectively enforced.

3.2 The role of knowledge regarding workplace accommodation

First and foremost, knowledge regarding workplace accommodation is crucial to starting the process. This entails that the employee know about his or her right to request reasonable accommodation, and that the employer understand his or her corresponding duty to provide for such accommodation.64 If both parties are knowledgeable on this issue, this should ensure that the employee is successfully re-integrated in the workplace, as their mutual knowledge would be conducive to open communication between them.65

3.3 The employer's ability to provide reasonable accommodation

Part of the process of enforcing the employee's right to be reasonably accommodated is that an affected employee has to establish through a discussion with the employer whether the employer has the ability to provide such reasonable accommodation or not based on operational requirements of the company. The employee will first have to request the provision of reasonable accommodation in order to initiate the necessary communication between the parties; and thereafter will be able to establish whether his or her request can be met.66 In return, this process will allow for an understanding between the parties, and for the employer to assess his or her position with regards to providing reasonable accommodation without incurring any form of undue hardships. The reasonable accommodation to be provided should be beneficial for both the employer and the employee.67 Thus, to facilitate this mutual benefit the two parties ought to negotiate their approach to the matter and finally agree on the way forward.

3.4 The negotiation of reasonable accommodation

An important factor to be taken into account is the negotiation of reasonable accommodation. This entails that the employer and the employee with cancer ought to enter into a form of a negotiation regarding their respective needs in order to reach a mutual understanding of how best to address them, and finally agree on a reasonable accommodation plan which benefits

both of them.68 Smaller companies and those companies that are struggling to stay financially afloat tend to have difficulty in providing reasonable accommodation for employees with cancer; hence the proposed process of negotiation between the parties is important.69 This could be described as a give-and-take process as it is not aimed at unduly benefitting one party at the expense of the other. Ultimately, the process is designed to ensure that equity is maintained by allowing both the employer and the employee with cancer to receive a benefit out of the facilitation of reasonable accommodation.

4 Reasonable accommodation in the context of employees with cancer

In the context of cancer, reasonably accommodating an employee with cancer entails conducting a four-staged inquiry in order to ensure that the employee is fully re-integrated into the workplace. The elements described above as forming part of the concept of reasonable accommodation remain relevant in the case of employees with cancer. However, the following elements are specifically applicable to the process of reasonably accommodating an employee with cancer from a European perspective, and could serve as the foundation for the South African position.

4.1 A gradual return to work and flexibility

Firstly, an employee with cancer should return to work gradually. This requires that there be flexibility in re-integrating him or her into the workplace, as he or she will have been away from work for a while.70 Progressive re-integration consists of allowing the employee with cancer to do fewer hours of work and facilitating flexibility, such as allowing him or her to take work home where possible. This would surely assist with building both the physical and mental strength of the employee with cancer and would be beneficial to his or her health.71 During the process of re-integrating the employee in the workplace, his or her right to privacy must also not be compromised, as the employer must allow for the employee with cancer to take medication in a private area.72 This would boost the self-confidence of the employee and facilitate a speedy recovery. Furthermore, this might help in avoiding the situation where the employee has to take

medication in front of his or her colleagues, who may possibly make the employee feel inferior by having to answer questions about his or her health condition.73

4.2 Modifications of work and performance expectations

Secondly, the duty of the employer to modify the work and performance expectations of the employee requires the elimination of some duties which the employee with cancer used previously to carry out.74 While this is being done it must be kept in mind that the employee is still recovering and possibly undergoing treatment; and thus the employer must be reasonable enough to accept that work which previously used to be completed in an hour could now probably be done in one hour and thirty minutes instead.75

4.3 Retraining the employee with cancer

Thirdly, the employer has a duty to train the employee with cancer again upon his or her return to work. It is important to note that training the employee upon his or her return does not constitute demotion, which would be an unfair labour practice.76 In this context, the purpose of training the employee once again has to do with assisting the employee to do his or her work, with the assistance of a mentor or colleague.77 The duty to train the employee all over again is normally dependent on the duration of the period for which the employee with cancer has been away from work. The longer the employee with cancer has been away from work, the more likely it is that he or she will require training. Employees usually react well to this retraining, as it helps to ensure that they are re-integrated in the workplace effectively.78

4.4 Modification of the physical workplace environment

Modifying the physical workplace environment and providing adaptive aids and technologies for employees with cancer is a duty that entails removing any obstacle which might prevent the employee from doing his or her job; as well as providing the relevant employee with a conducive work-station.79 For example, if the work of an employee who suffers from a physical

deformity requires moving up and down stairs, then the employer can recommend that he or she should use a lift or should be stationed where he or she does not need to move up and down when conducting his or her duties. This will amount to reasonable accommodation. With regard to the physical environment, reasonable accommodation might include the adaptation of various features such as the modification of the office temperature. It might also be necessary to change the working shifts to accommodate the employee's medical check-up routine, to permit the employee to work from home, and to call a doctor although the general policy of the employer might prohibit the use of the company's telephone for personal reasons.80

The focus of the paper will now shift to the right to privacy of the employee with cancer, while the employer is providing reasonable accommodation to the employee concerned.

5 The right to privacy

Before discussing the right to privacy in South African law, it is important to note that the Constitution entrenches this right in section 14.81 Furthermore, it is necessary to take into consideration that the right to privacy is also upheld and protected by various statutes. These include the Protection of Personal Information Act 4 of 2013 and the National Health Act 61 of 2003.82 For the purposes of this paper only the common law and constitutional position with regard to the right to privacy will be explored. Furthermore, it is important for the reader to take note of the fact that the right to privacy is broad and a lot of cases have come before our courts; but for the purposes of this paper, only the landmark cases which form part of the backbone of the right to privacy in terms of both the common law and the Constitution will be referred to.

5.1 The common law definition of privacy

Under common law, every person has personality rights such as the rights to physical integrity, freedom, reputation, dignity and privacy.83 According to Neethling, privacy is defined as an individual condition of a person's life, which is characterised by seclusion from the public and publicity.84 As a person may determine that certain personal facts are to be excluded from the knowledge of other people, this means that the right to privacy is violated when a person learns of private information about another person without the consent of the latter.85

The right to privacy has long been entrenched in the common law, in which everyone has personality rights, which include the right to physical integrity, freedom, reputation, dignity and privacy.86 The right to privacy has been recognised as an independent personal right that applies to both natural persons and juristic persons, such as companies.87 The violation of the right to privacy is determined by the court in terms of the reasonableness standard in terms of the interests of the community in order to guard against any form of injustice perpetrated against an individual or a company.88 Privacy underpins dignity, since a violation of the right to privacy infringes on the right to dignity.89 This is because these two rights relate to each other, in the sense that the right to privacy ensures that one is entitled to maintain the confidentiality of information the publication of which may damage the dignity of the person.90

This rich history which emanates from common law with regard to the right to privacy and other related rights such as dignity and reputation clearly affirms Burchell's view that "the common law of privacy in South Africa still provides the lion's share when it comes to the right to privacy standard".91 This is despite the fact that currently, in the new constitutional dispensation, the rights to privacy, dignity, reputation and freedom are recognised individually and independently in order to give them greater import, which was not the position in common law, where these rights were treated collectively rather than individually.92

5.2 Legality of the common law right to privacy in the constitutional era

The right to privacy has long been protected in our law, dating back from the time it was inherited from the Roman law system, in which the actio iniuriarum was provided as a remedy in cases where there was an invasion of the sanctity of a person's home.93 This was the position before the constitutional dispensation came into existence and provided for the right to privacy in terms of section 14 of the Constitution.94 Two examples of case decisions dealing with the common law right to privacy can be found in the 1900s. An English case will be discussed first and a South African case thereafter.

In Tolly v Fry and Sons Ltd95 the plaintiff was an amateur golfer and the defendant was a producer of candy. The defendant, in his advertisement of chocolates, showed the plaintiff with a bar of chocolate protruding from his

back pocket.96 This advertisement was not done with the consent of the plaintiff, and the plaintiff challenged it on the basis that it violated his right to dignity and privacy. Furthermore, the plaintiff argued that the advertisement was been composed and published without his consent; and that it had the potential to destroy his golfing career, as he was still an amateur.97 The court found the conduct of the defendant as unlawful and ordered the defendant to compensate the plaintiff for the loss or harm which he had suffered as a result of the advertisement.98

In the case of O'Keeffe v Argus Printing and Publishing Company Ltd99 the plaintiff was a well-known radio personality who consented to the publication of her photograph, taken at a pistol range, to be used for a newspaper article by the defendant company.100 The defendant company, however, used the photograph of the plaintiff for advertising purposes, which was not what the plaintiff consented to in the first place. Watermeyer AJ held the view that the conduct of the respondent company was unlawful and that the respondent acted contrary to the right to privacy of the plaintiff. The respondent was ordered to compensate the plaintiff for the violation of her right to privacy with regard to the derogatory advertisement.101

5.3 The right to privacy in terms of section 14 of the Constitution of the Republic of South Africa

Section 14 of the Constitution states that everyone has the right to privacy, which includes the right not to have their person or their home searched, their property searched, their possessions seized, or the privacy of their communications infringed.102 Schoeman defines privacy as a state or condition of limited access to a person.103 The right to privacy was also considered in National Media Ltd ao v Jooste.104 Harms AJ explained that the right to privacy can best be described as an individual condition of life characterised by its being kept from the public and publicity. This condition includes all personal facts which the individual has determined to be excluded from the knowledge of other people and in respect of which he or

she wills that they be kept private.105 Kennedy and Arnold v Ireland106 takes the discussion of the right to privacy further by stating that:

… though not specifically guaranteed by the Constitution, the right to privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the state. The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely a sovereign, independent and democratic society.107

This reasoning by the court surely infers the position of the South African judiciary in this democratic state, which will protecting the right to privacy of an individual from other people.

6 The duty of the employee to disclose and its effect on the employer's duties to provide reasonable accommodation

An employee can voluntary disclose to the employer that he or she has been diagnosed with cancer, and to further disclose the effect of the disease on his or her capacity.108 The employee with cancer is strongly encouraged to disclose his or her cancer status in order to allow the employer to assist the employee with the necessary reasonable accommodation. This disclosure will ensure that the employer is in a position to make the necessary

arrangements to accommodate the employee in the work place, because the employer will now be aware of the medical condition of the employee.109 However, this disclosure of the employee is protected in terms of section 14 of the Constitution, which refers to a person's right to privacy.

This means that the disclosure which the employee with cancer provides to the employer binds the employer not to disclose this information to people outside the employment setup, as that would amount to unlawful disclosure and would constitute a violation of section 14 of the Constitution.110 However, any disclosure by the employer to fellow employees so as to assist the employee with re-integration in the workplace will not amount to the violation of section 14 of the Constitution.111 In this context Hyundai Motor Distributors v Smit serves as the basis. The Constitutional Court stated therein that:

… the right to privacy is implicated whenever a person has the ability to decide what he or she wishes to disclose to the public [;] and the expectation that such decision will be respected is reasonable.112

Currently, in the new constitutional dispensation, there are various court cases that serve as precedent in protecting the right to privacy in our law, and which ought to be discussed in order to give a comprehensive layout of the constitutional right to privacy and the manner in which it is upheld by the

courts. Furthermore, one also has to account for court cases which specifically dealt with the aspects of how to balance the employee's right to privacy with his or her duty to disclose certain conditions such as cancer.

For example in Mistry v Interim National Medical and Dental Council113 a raid had been carried out in the surgery of a Dr Mistry in Pinetown by an inspector and a health official without Dr Mistry's consent and knowledge.114 They seized medicines and other health equipment from his medical centre, and as a result of this Dr Mistry brought the matter to court in order get a ruling on the constitutionality of section 28 of the Medicines and Related Substance Act Control Act 101 of 1965. He further claimed for the items which were taken from his medical centre during this search to be returned to him; and finally he argued that the conduct of the inspector and health official was in actual fact violating his right to privacy.115

Sachs J delivered the unanimous judgment in which he held that the provisions which are in place to guide the approach of state officials when entering the private property of civilians are important in a democratic society, as against in a police state.116 He held further that these provisions secure respect for people's right to privacy, while at the same time ensuring that police officers act within the boundaries of the law and do not act as they please. In passing, Sachs J noted that South Africa has a rich history of police brutality and anarchy, which had had dire consequences of violating the human rights to privacy and dignity, and he emphasised that such conduct was not acceptable in the new constitutional dispensation.117 The protection of the right to privacy of all citizens was important and fundamental.

Section 28(1) of the Medicines and Related Substance Control Act grants inspectors a wide scope of powers to enter into the private dwellings of people and is undoubtedly unconstitutional because it contravenes the

Constitution as it undermines and compromises people's right to privacy.118 The claim instituted by Dr Mistry regarding the violation of his right to privacy and for the return of the goods which were taken during the search was rejected by the court.119 The reason for the court's rejection of the claim was because his right to privacy had not been violated as the inspector had not communicated the information about the search to third parties; and further, Dr Mistry had failed to prove that the law in terms of which these officials had acted was in actual fact invalid at the time the goods were taken.120 In this case is clear that Dr Mistry failed to discharge his onus of proof on a balance of probabilities that the health inspector acted unlawfully.

7 Balancing the employee's right to privacy with the employee's option to disclose his or her medical condition

An employee with cancer who discloses his or her health condition to the employer surely expects a level of respect and tolerance on the part of the employer in order to maintain a good working relationship with the employer and fellow employees. However, in practice employees with cancer are cautious when it comes to disclosing their medical condition to their employers,121 since they fear being categorised or stereotyped as people who have cancer.122 Employees with cancer are typically reluctant to disclose their medical condition to their employers because they believe that their employers and fellow employees will treat them differently once they know about their medical condition. Disclosure makes them less attractive for job opportunities, as employers are likely to find it difficult to provide employees with cancer with reasonable accommodation in order for them to function well in the workplace.123

Despite all these challenges which employees with cancer experience when it comes to disclosing their medical condition to employers, they are encouraged to disclose their medical condition, because a failure to do so can yield negative results for them. Managing a dangerous condition such as cancer can be burdensome on an isolated individual, and the stress could result in the loss of the psychological resources necessary for effective performance of a job, and necessary also to assist in the overall healing process.124 This is what Wegner and Lane describe as the "secrecy cycle of cancer", which is very consuming and detrimental to the overall health of the individual and must be avoided at all costs.125 One is compelled by this line of reasoning to agree with the sentiments of Collins and Miller, who argue that an employee with cancer who discloses that he or she has cancer is relieved of the burden of managing a displaced identity.126 Disclosure can yield positive results for the employee, including job satisfaction, less job anxiety, and a greater commitment to working. These factors have been proven to lead to the speedy recovery of the employee with cancer. Working should be seen as a component of the regimen for treating cancer.127

In C v Minister of Correctional Services,128 the plaintiff was working as a cook in prison while serving his sentence. One day all prisoners were informed about an HIV/AIDS test which everyone needed to do for purposes of screening for HIV and other sexually transmitted diseases. Emphasis was placed on the right of the prisoners to refuse to undergo such tests if they so wished and the plaintiff went for testing with the assistance of a fellow prisoner, where the test showed him to be HIV positive.129 The plaintiff instituted a claim against the defendant on the basis of the violation of his right to privacy. He stated that his right to privacy had been violated as he had not provided informed consent to undergo such a test in the first place. The defendant argued that the Department had adopted the concept that informed consent was a prerequisite for testing prisoners and specified the norms which had been applicable before this incident took place.130

Judge Kirk-Cohen rejected the argument raised by the defendant on the basis that the information about the test, its purpose and the right to refuse

to submit to the test had been communicated to the plaintiff as a member of a group of prisoners standing in a row in a passage, with no privacy and no time to reflect.131 What had been repeated to each prisoner in the consulting room had not been said by anyone trained in counselling and had also not been said privately but in the presence of fellow prisoners.132 This clearly showed that the plaintiff had not consented to the test in the first place, and thus the conduct of the defendant amounted to the violation of the right to privacy of the plaintiff as protected by the Constitution.133

Another case in point that serves as authority in protecting the right to privacy in the health context is NM v Smith,134 where the names and HIV statuses of the three applicants were published in a biography without their knowledge and consent. The three applicants brought a claim to the court on the basis that the publication violated their right to privacy and human dignity as protected by the Constitution.135 The court was of the view that the respondents had been aware of the fact that the applicants had not given their consent with regard to the publication, but that they had gone ahead with the publication, thus violating the applicants' rights to privacy and human dignity. The use of pseudonyms would not have rendered the book less authentic and nowhere had it been shown to be in the public's interest to demand the publication of the real names of the applicants.136 The court ordered the respondents to compensate the applicants for the damages arising from the violation of their rights to privacy and human dignity as protected in terms of sections 10 and 14 of the Constitution, respectively.137

Based on the discussion above and the court cases which entrench the right to privacy, it is clear that the right to privacy of an employee with cancer is not lost when he or she discloses his or her current state of health to an employer, and the employer may not use such information beyond accommodating the employee in the workplace. Disclosure will serve as an aid allowing the employer to understand the medical condition of the employee and provide the necessary support through reasonable accommodation, among other things. Therefore a link can be identified between the operation of the constitutional right to privacy and the right to fair labour practices in the context of the legal issues which affect employees with cancer. In order for the employer to execute his or her obligations, he or she ought to know about the employee's condition, and this requires disclosure of such information by the employee. This amounts to a justifiable limitation of the employee's right to privacy for the purposes of enabling the employer to uphold and protect the employee's rights to privacy and to fair labour practices. The truth regarding all the constitutional rights granted by our Constitution is emphasised here; which is that these rights are not absolute and at times ought to be reasonably and justifiably limited in order to ensure that they are effectively enforced.

8 Conclusion

It is quite clear from the above that a balance can be maintained between the duty of the employer to reasonably accommodate an employee with cancer in the workplace and not violate the employee's right to privacy while executing this duty. This will be possible if the employer does not abuse his or her position of authority, and does not use the information about the medical condition of the employee contrary to the purpose for which it was disclosed for by the employee concerned.

Bibliography

Literature

Ashforth and Humphrey 1993 Acad Manag Rev

Ashforth BE and Humphrey RH "Emotional Labour in Service Roles: The Influence of Identity" 1993 Acad Manag Rev 88-115

BC Public Service Employee Relations Commission Manager's Guide

British Columbia Public Service Employee Relations Commission A Manager's Guide to Reasonable Accommodation (Public Service Employee Relations Commission Victoria, BC 2008)

Bernard 2014 PELJ

Bernard RB "Reasonable Accommodation in the Workplace: To Be or Not to Be?" 2014 PELJ 2869-2891

Burchell 1999 SALJ

Burchell JM "Media Freedom of Expression Scores as Strict Liability Receives the Red Card: National Media Ltd v Bogoshi" 1999 SALJ 1-11

Cancer Journey Advisory Group Research

Cancer Journey Advisory Group Research Related to the Workplace Support for Cancer Survivors: Perspective of Employers (Canadian Partnership Against Cancer Toronto 2012)

Collins and Miller 1994 Psychol Bull

Collins NL and Miller LC "Self-Disclosure and Liking: A Meta-Analytic Review" 1994 Psychol Bull 457-475

De Vos and Freedman South African Constitutional Law

De Vos P and Freedman W (eds) South African Constitutional Law in Context (Oxford University Press Cape Town 2014)

Devane Making the Shift

Devane C Making the Shift: Providing Specialist Work Support to People with Cancer (Macmillian Cancer Support London 2013)

Doyal and Hoffman 2009 CME

Doyal L and Hoffman M "The Growing Burden of Chronic Diseases among South African Women" 2009 CME 456-458

Ganz Cancer Survivorship

Ganz PA Cancer Survivorship: Today and Tomorrow (Springer New York 2007)

Herbst CANSA Guidelines

Herbst MC "CANSA Guidelines for Caregivers and Employers on how to Care for people living with Cancer" CANSA 2016

Kennedy 2007 Eur J Cancer Care

Kennedy F "Returning to Work Following Cancer: A Qualitative Explanatory Study into the Experience of Returning to Work Following Cancer" 2007 Eur J Cancer Care 17-25

Kok 2001 TSAR

Kok A "The Promotion of Equality and Prevention of Unfair Discrimination Act: Why the Controversy?" 2001 TSAR 294-310

Lindbohm et al 2004 EJC

Lindbohm ML et al "The Impact of Education and Occupation on the Employment Status of Cancer Survivors" 2004 EJC 2488-2493

Martinez Childhood Cancer Survivors' Workplace Experiences

Martinez RL Childhood Cancer Survivors' Workplace Experiences (Master of Arts thesis Rice University Texas 2010)

Marumoagae 2012 PELJ

Marumoagae MC "Disability Discrimination and the Right of Disabled Persons to Access the Labour Market" 2012 PELJ 345-365

Mehnert 2011 Crit Rev Oncol Hematol

Mehnert A "Employment and Work-Related Issues in Cancer Survivors" 2011 Crit Rev Oncol Hematol 109-130

Neethling, Potgieter and Visser Law of Personality

Neethling J, Potgieter JM and Visser PJ Neethling's Law of Personality (LexisNexis Butterworths Durban 2005)

Ngwena Disabled People and the Search for Equality

Ngwena CG Disabled People and the Search for Equality in in the Workplace: An Appraisal of Equality Models from a Comparative Perspective (LLD-thesis University of Free State 2010)

Roos 2008 PELJ

Roos A "Personal Data Protection in New Zealand: Lessons for South Africa" 2008 PELJ 62-109

Schoeman Philosophical Dimensions of Privacy

Schoeman F Philosophical Dimensions of Privacy: An Anthology (Cambridge University Press Cambridge 1984)

Shaw and Feuerstein 2004 J Occup Rehabil

Shaw WS and Feuerstein M "Generating Workplace Accommodations: Lessons Learned from the Integrated Case Management Study" 2004 J Occup Rehabil 207-216

Stergiou-Kita et al 2015 J Cancer Surviv

Stergiou-Kita M et al "The Provision of Reasonable Accommodations Following Cancer: Survivor, Provider, and Employee Perspective" 2015 J Cancer Surviv 489-504

Wegner and Lane Emotion, Disclosure and Health

Wegner DM and Lane JD Emotion, Disclosure and Health (Pennebaker Washington DC 1995)

Case law

South Africa

C v Minister of Correctional Services 1996 4 SA 292 (T)

Department of Correctional Services v POPCRU 2011 32 ILJ 2629 (LAC)

In Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit 2001 1 SA 545 (CC)

Jackson v NICRO 1976 3 SA 1 (A)

Kievits Kroon Country Estate (Pty) Ltd v Mmoledi 2012 11 BLLR 1099 (LAC)

MEC for Education, Kwazulu Natal v Pillay 2008 1 SA 474 (CC)

Minister of Finance v Van Heerden 2004 6 SA 121 (CC)

Mistry v Interim National Medical and Dental Council 1998 4 SA 1127 (CC)

National Media Ltd ao v Jooste 1996 3 SA 262 (A)

NM v Smith 2007 5 SA 250 (CC)

O'Keeffe v Argus Printing and Publishing Company Ltd 1954 3 SA 244 (C)

Tshabalala-Msimang v Makhanya 2008 1 All SA 509 (W)

Foreign case law

Kennedy and Arnold v Ireland [1987] IR 587

Ontario Public Services Employees Union v Ontario (Ontario Human Rights Commission) 2015 ONCA 495

Tolly v Fry and Sons Ltd [1931] AC 333; [1931] UKHL 1

Legislation

South Africa

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Employment Equity Act 55 of 1998

Interim National Medical and Dental Council Act 101 of 1965

Labour Relations Act 66 of 1995

Medicines and Related Substance Control Act 101 of 1965

National Health Act 61 of 2003

National Prosecuting Authority Act 32 of 1998

Protection of Personal Information Act 4 of 2013

Social Assistance Act 13 of 2004

Foreign legislation

American Amended Discrimination Act, 2008

Equality Act, 2010

Internet sources

Cancer Council Australia date unknown http://www.cancer.org.au/content/pdf/AboutCancer/support/workingwithcancer_sect2.pdf

Cancer Council Australia date unknown Cancer Impacts in the Workplace http://www.cancer.org.au/content/pdf/AboutCancer/support/workingwithcancer_sect2.pdf accessed 31 March 2017

Fesko 1999 https://www.communityinclusion.org/article.php?article_id=77

Fesko SL 1999 Working It Out: Workplace Experiences of Individuals with HIV and Cancer https://www.communityinclusion. org/article.php?article_id=77 accessed 31 March 2017

Van Hoey 2017 http://www.cancer.net/coping/relationships-and-cancer/cancer-and-workplace-discrimination

Van Hoey N 2017 When Cancer Leads to Workplace Discrimination http://www.cancer.net/coping/relationships-and-cancer/cancer-and-workplace-discrimination accessed 31 March 2017

List of Abbreviations