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Incapacity dismissals: Not “here” doesn’t mean “gone”

Peter McDermott

The employment contract creates reciprocal duties between the employer and the employee. The employee's primary duty is to perform the work for which he has been contracted. But what happens when performance become impossible because of ill-health or injury? Contractually, this is grounds to cancel the contract. But labour law doesn't allow for someone's employment to be terminated that way. . Read on to find out about the incapacity investigation process.

Ill-health or incapacity because of injury refers to circumstances where employees - usually through no fault of their own - are unable to perform. Terminating the contract may be suitable under these circumstances provided that certain criteria are met and the correct procedures are followed.

It isn't enough that an employer experiences a justifiable loss of confidence in the employee's ability to perform. It isn't even enough that an impartial bystander would've come to this same conclusion. Impossibility being obvious - for example, such as a race car driver who is blinded - doesn't change the procedure to be followed:

  • An employer can't unilaterally dismiss the employee.
  • The employer must look at minimising the impact of the employee's incapacity and consider alternatives that are less serious than dismissal.

As with all things labour related, this process will be measured for substantive and procedural fairness. Failure to do so will activate section 188(a)(i) of the Labour Relations Act 66 of 1995 (LRA) and make the dismissal unfair.

The code of good practice of the LRA (schedule 8) directs that if an employee is unable to perform as contracted, the employer must determine:

  • The extent to which the employee is able to perform the work,
  • The extent to which the employee's work circumstances or duties might be adapted to accommodate the disability, and
  • The availability of suitable alternative work.

In Davis v Clean Deale CC (1992) 13 ILJ 1230 (IC), the Industrial Court elaborated on the process: "The employee is allowed to participate in this investigation to the extent necessary to protect his interests and the employee may be asked to perform his tasks to demonstrate his ability or lack thereof. The employer should next, after consultation with the employee, ascertain whether the duties are to be performed can be adapted so that the employee is capable of fulfilling same alone or with assistance that is reasonable under the circumstances. If the employee can't be placed in his former position, the employer must ascertain if alternative work even at a reduced salary is available within the employer's organisation."

Ill-health doesn't need to be permanent for the employer to consider dismissal. Schedule 8(1) includes under 'incapacity' circumstances where an "employee is likely to be absent for a time that is unreasonably long in the circumstances."

In fact, employees may be unable to perform certain functions adequately even if they are absent for only short periods of time. The period of incapacity need not be continuous. Persistent bouts of absence may entitle the employer to dismiss, as per the judgment in AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC). Only when the following has been established would a dismissal be substantively justifiable:

  • There is no prospect of an employee recuperating sufficiently to justify continued employment, or
  • When such recuperation is not so timeous as to avoid the employer suffering significant loss because of the employee's absence.

Procedurally, this requires that the employer first determine if the employee's incapacity is temporary or permanent. If temporary, the employer should:

  • Investigate the extent of the incapacity,
  • Establish the likely length of the employee's period of absence, and
  • Investigate alternatives to dismissal.

In most cases of medical incapacity, employers rely heavily on medical professionals' input and it may become necessary for the employer to appoint - at their own cost - doctors and specialists to render medical verdicts on some or all of the above issues.

The cause of incapacity is just as relevant as the degree of the incapacity as it may affect the kinds of remedial action to be considered. Where employees have been injured at work or are incapacitated because of work-related illnesses, the employer's duty to accommodate the incapacity of the employee is 'more onerous' as per schedule 8(10)(4).

Employers are encouraged use of the incapacity investigation process. If conducted correctly and thoroughly, an investigation may safeguard the employer against rash action or dismissal that may prove costly in the end.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions