Incapacity hearing and general guidelines for:

Dealing with employees who are unable to perform their work due to illness or injury.

1. Incapacity on the grounds of ill-health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In case of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
2. In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response to the allegation of incapacity and be assisted by a trade union representative or fellow employee.
3. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.
4. Particular consideration should be given to employees who are injured at work or who are incapacitated by work related illness.

The following principles have emerged from South African case law involving dismissals for incapacity, arising out of illness or injury:

• The employer must ascertain whether the employee is capable of performing the work for which he or she was employed;
• If employees are unable to fully perform their normal duties, the extent of their incapacity, and its likely duration, must be established;
• The employer is then obliged to investigate whether the employee’s duties can be adapted to accommodate the disability;
• If employees cannot be placed in their former position, their employers must ascertain whether alternative work can be found for them, even if at reduced remuneration.
Only once these steps are taken, will dismissal of an injured or sick employee be deemed substantively fair.

The nature of the incapacity

The incapacity hearing must arise from ill health or injury.

Ascertaining whether the employee is capable of doing the job

The employer is required to determine the nature and severity of the employee’s incapacity and the employee’s prognosis. Management’s duty is to properly acquaint itself with the employee’s medical condition. Whatever the cause of the incapacity, the onus rests on the employer to prove that the employee is in fact incapacitated. Employers are entitle to request employees to undergo medical examinations, but cannot compel them to do so. Testing for HIV/AIDS, for example, is expressly forbidden except with the consent of the Labour Court. If employees refuse to undergo a medical examination, their employers must take their decision on the available evidence. Medical incapacity can also be proved by testing whether the employee is in fact capable of performing the tasks attached to his job.

The seriousness of the incapacity

How serious must employee’s illness or injury be before their employers can justifiably dismiss them? The code draws a distinction between temporary absences due to illness or injury and those that endure for a time that is ‘unreasonably long’ in the circumstances. Dismissal is in principle permissible in case of repeated absences, even if they are for medical reasons covered by medical certificates. However, in such cases employees must still be counselled and consulted. When an employee’s absence can be deemed ‘unreasonable long’ depends on the circumstances. These include the importance of the employee’s job, the length employee’s service, the ease with which the employee can be replaced, the financial capacity of the employer to make arrangements to replace the absent employee, the prospects of recovery, and the effect of the employee’s absence on other employees.

Alternative / adapted employment

Possible alternatives to dismissal include adapting employee’s current duties so that they are able to perform them in spite of their disabilities, providing employees with reasonable assistance and/or equipment to help them cope with those duties, or finding employees alternative work with which they can cope notwithstanding the disability. If the latter course is adopted, it is acceptable to reduce the employee’s remuneration to that normally attached to the alternative position.

When termination is fair

In summary, then, it will be fair to dismiss employees for incapacity if:
• The employees have been counselled, and their medical conditions and the problems arising from it have been discussed with them;
• The employees’ medical conditions make it impossible for the employees to perform their normal duties;
• The employees’ prognosis are poor;
• The employees have had a fair opportunity to contest the employer’s conclusion about their medical conditions and prognoses;
• The employees’ working conditions cannot be adapted, or alternative work is not available.

For any further Labour Law related queries, please contact Bernard on:
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Fax: 021 423 2105
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