The Labour Relations Act (LRA) obligates employers to do everything humanly possible to avoid the dismissal of ill or injured employees. This obligation primarily flows from the fact that an employee’s ill health or injury is a so-called “no fault” scenario and, as such attempts to preserve the employee’s employment must receive priority.
That’s not to say that incapacitated employees cannot be fairly dismissed; on the contrary, the dismissal of staff due to their ill-health or injury may indeed be fair as long as the provisions of section 10 and 11 of Schedule 8 of the LRA have been complied with.
Employers are required to fully investigate the extent of an employee’s incapacity. Is the incapacity temporary or permanent? How serious is the ill-health or injury? Is it possible to replace with a temporary appointment? How might the employee’s job design and/or work environment be modified to accommodate the employee? During the process, the employee is to be afforded a full opportunity to state their case.
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