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A person with disability: where and how to protect labour rights?

19/09/2013

According to the statistics of the Office for the rights of persons with disabilities about 30 percent of appeals to the Office are connected with the problems of employment of persons having some health limitations. Is it possible to fire an employee who raises a disabled child? Does a person with disability have a priority right to keep the job? On what grounds can employer refuse a person with disability in employment?

“Individual program” labour

According to the art. 283 of the Labour Code of the Republic of Belarus from July 26, 199 №296-3 disabled persons are guaranteed the right, taking into account the individual programs of rehabilitation, to work at employers with common working conditions and also in specialized organizations.

Besides, the bodies of labour, employment and social protection of city, district executive committees are obliged to solve the problems of employment, including among persons with disability. Inclusion of persons having health limitations to the sphere of labour not only improve their financial situation, but also provide equal access in the society to the realization of their right for labour and professional potential, abilities and skills, gives persons with disabilities the possibility to get a higher social status. The labour of persons with disabilities is based on individual approach to every one of them. In order to provide employment psychophysical peculiarities, medical indications, the level of education and qualification, professional skills and personal wishes should be taken into account. 

Two higher educations – not an argument?  

For example, citizen Sh., having the third group of disability appealed to the Office for the rights of persons with disabilities. The case is not a common one, he was refused in employment, although one of the Minsk employment departments found a vacancy for him, which corresponded with his professional education and other employer’s conditions. It was supposed that Sh. would be working as a computer operator in one of the stores of huge retail network in Minsk.

Persons with disabilities are not always able to equally compete with other people at labour market, but it is necessary to promote accessibility in the sphere of employment. According to the MREC recommendations, the person who appealed to the Office had to be granted either shortened working day or extra day off a week.

Administration of the retail network explained, that the supermarket, Sh. wanted to employ to, is working every day without days off, that is why computer operators work according to the following schedule: two days in a row 11 working hours, two days off. Such working schedule doesn’t correspond with the recommendations of MREC. In order to take into account MREC’s recommendations it is necessary to change schedules of employees who have been working at the store and the set regime of the store’s work.

Formally, there is no employer’s guilt in the refuse to employ Sh, but he got psychological trauma and felt as a disability discrimination victim, says the Office’s lawyer Olga Triputen. Specialists also state: practice shows that employers do not want to employ persons with disabilities if they have to change organization’s working schedule or some other set conditions. This fact should be taken into account by employment bodies – now they search for vacancies without taking into account individual peculiarities, without analyzing individual program of rehabilitation.

Jurists recommend bodies of employment and other structures involved in employment to be more attentive during finding vacancies in order to prevent problematic situations and to take into account the peculiarities of people who are trying to find a job. It is very important to make a selection of specialists taking into account the existing peculiarities of the labour market.

 

Burden of social protection

Dealing with conflict cases in the sphere of employment of persons with disabilities we have to remember about the existence of special legal and administrative norms – says the coordinator of the Office for the rights of persons with disabilities Sergei Drozdovskiy. – Employers are obliged to demand a disabled’s individual program of rehabilitation when hiring him. This, as it seems a positive norm, without special approach creates vulnerable situation for both – an employer and a potential employee. IPR becomes an extra factor crating negative attitude of an employer for hiring a disabled person in addition to existing ones. Even getting the labour recommendation is a long process, sometimes taking several months. What a prestigious job will wait for an employee for such a long time?

It is very important to say that a very complicated and cost-based procedure of getting IPR sometimes doesn’t guarantee employment. It is connected with the fact, that recommendations are created by doctors-experts who use instructions and the list of professions which go out of date at the time they are being created – says Sergei Drozdovskiy. This is the burden of social “protection” every disabled has to experience if he wants to work. The whole situation victimizes a person because of his disability. And as we can see, there are no enough legal mechanisms to protect a person with disability.

That is why specialists have to protect the rights of their client by using complicated algorithms.

 

From theory to practice: how to protect labour rights?

Specialists of the Office for the rights of persons with disabilities face such a problem for the first time, but it doesn’t mean that it is not widely spread. There are a lot of disputable labour issues in different regions of the country. But, as a rule, people start to complain only when they can’t do anything because of hopelessness. Persons with disabilities very often forget that they have the same rights for labour as all the other people. And if their rights are violated, there is always a possibility to protect them, or at least to try to protect.

What should a person do if his labour rights were violated? Where should he go? – by jurist Oleg Grablevkiy.

  • In some situations the legislation defines concrete demands on using the definite legal algorithms: to what body, in what term and in what form to appeal. For example, in case of contract termination because of the violation of labour legislation by the employer, employee has to get the proof of the fact of violation. And in this case the legislation states that the fact of violation is ascertained by a special state body of legislation and labour control, unions or court.

We offer some procedures of protection of violated labour rights, which can be applied to any kind of violation and are good as the basic action and as the extra one to other legal procedures.

If labour rights are violated a person can appeal to the following bodies:

To the Bar for legal assistance. This procedure can be used by both categories: people who are going to employ and who are already working. The Bar renders free assistance in several cases: in first instance courts in cases connected with labour relations to 1st and 2nd groups disabled; oral consultations which do not demand acquaintance with documentation.

To union for legal assistance: Although, there is a skeptical attitude in the society towards unions, a person shouldn’t neglect the possibility to apply to unions for legal consultation. In particular, it concerns independent unions, such as, for example, Belarusian union of workers of radio electronic industry, Free Belarusian union.

To NGOs and mass-media: For example, to the Office for the rights of persons with disabilities, which renders legal assistance to persons with disabilities, helps to realize their rights. Appeals to media sometimes help the controlling bodies to be more motivated.

To legal Internet resources: Today a lot of legal websites offer online consultations.

To prosecutor’s office: with a complaint against actions or vice versa inaction of an official or organization. In case if a prosecutor finds a violation he is eligible to make a proposal on correction of the violation of labour legislation.

To the department of the state inspection of labour of the Ministry of labour and social protection of the Republic of Belarus: with complaint or statement. This is the specially authorized body of labour legislation control.

To superior persons: There is a possibility to file a complaint to superior persons or organizations. For example, if the enterprise is in the structure of some ministry, in this case a complaint to the minister can be effective.

With a complaint to other state bodies: to which the subject, which violated the labour rights, is not directly subordinate to, but this body has some influence. For example, appeals to the Administration of the President are practiced very often, and sometimes they really help. If the violations of human rights are of anti-constitutional character, a person can file a complaint to the Constitutional Court. Although it is not authorized to react to appeals by natural persons, there were cases when appeals were considered.

To the court: with a claim to reinstate in violated rights. As a rule, before a person files a claim he should undergo obligatory pretrial legal procedures (depends on the situation), that is why it is important to find a possibility of getting qualified legal assistance

To UN human rights committee: a person can file an individual complaint. In this case you have to pass through all the national instances, in this case a person also needs qualified legal assistance.