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Dismissal is unfair if rehabilitation is needed

Ivan Israelstam

Disabled or sick employees are protected by law. They cannot be disciplined for their incapacity (sickness or disability) even if this has been brought on by their own actions. For example, an employee who drinks excessively and becomes an alcoholic is legally classified as being ill and is protected by law. Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against employees because of disability. This means that an employer may not discriminate against an employee because he is disabled. In fact, the EEA obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.

Section 187(1)(f) of the Labour Relations Act (LRA) says that:

A dismissal is automatically unfair is the employer unfairly discriminated against the employee – directly or indirectly – on any arbitrary ground. This includes, but is not limited to:

  • Race,
  • Gender,
  • Sex,
  • Ethnic or social origin,
  • Colour,
  • Sexual orientation,
  • Age,
  • Disability,
  • Religion,
  • Conscience,
  • Belief,
  • Political opinion,
  • Culture,
  • Language,
  • Marital status or
  • Family responsibility.

As disability is included in the above list means, for example, that if your production manager is permanently paralysed from the waist down in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled manager will be unable to command the respect of the workforce. You would have to prove that this production manager is in fact unable to work before you could even consider terminating his/her employment.

In the CCMA case of Truter vs Mechem (GA865):

  • The employee was hired as a filing clerk. She was promoted a few months later to the position of logistics manager after which she was involved in a serious motor accident that necessitated brain surgery and left her with speech difficulties.
  • Her employer terminated her services while she was still in hospital claiming that her contract had expired. The arbitrator believed that the real reason for the dismissal was the employee's accident and awarded the employee eight months salary in compensation for the unfair dismissal - eight months' salary at the rate that a manager would be paid will have come to tens of thousands of rands.

In the recent case of Black Mountain vs CCMA and others (2005 1 BLLR 0001):

  • The employee was found guilty of causing damage to the employer's property while driving under the influence of alcohol.
  • The employee was dismissed and referred an unfair dismissal dispute to the CCMA as he believed he should've been sent for alcoholic rehabilitation instead of being fired.
  • The CCMA arbitrator agreed and overturned the dismissal. The employer applied to the Labour Court for the arbitrator's decision to be reviewed.
  • However, the Labour Court, after looking at the employer's policy in regard to alcohol-related infringements, decided that:
    - The employee had been wrong in what he had done,
    - The employer should've allowed the employee to go for rehabilitation,
    - The dismissal was unfair,
    - The employer was required to reinstate the employee and give him back pay for a period of 18 months, and
    - The employer was to pay this money to the employee with interest.

The above cases make it clear that:

  • Sick employees are strongly protected from unfair treatment aimed at their disabilities.
  • Alcohol abuse is seen as an illness in South African law.
  • Employers are legally required to adhere to their own policies.
  • Treatment must be considered before dismissal of a sick employee can be considered.

This means you need to:

  • Explore every alternative to dismissal before considering terminating the employment of a sick employee,
  • Genuinely and thoroughly involve the incapacitated employee in the process of considering alternatives giving the employee ample opportunity to state his/her case, and
  • Formally place on record every step taken in the above process.