In many industries, employers provide assistance to clients in the form of services, and one such an example would be the security industry.
Situations, for various reasons, arise where the client informs the employer that a specific employee is no longer permitted on their premises, the employee’s access is therefore denied. Typical examples would be when a security officer is found sleeping on duty on a client’s site or when a mine worker commences work on a site, and then during the screening process, it becomes evident that the employee has a criminal record.
In these instances, clients demand that those employees be removed from the site immediately. The employer is then faced with a dilemma. What is the employer supposed to do with an employee, who has been denied access to the site?
The above does not necessarily mean that the employee in question made himself guilty of misconduct. It could be an incident where the employee did not comply with the client’s policy, or an employee is precluded/incapable of performing his/her duties due to some external factors, and the employer has no alternative to provide to the employee.
Items 10 and 11 of Schedule 8 to the Labour Relations Act No 66 of 1995 only provides dismissal for incapacity due to ill health or injury. Item 8 of the code of good practice for dismissal refers specifically to poor work performance. An employer can, however, in this instance conduct an incapacity enquiry for the employee due to the supervening impossibility of performance of the employee.
This form of an incapacity enquiry and procedure is not governed by any known legislation like the other forms of incapacity. However, case law and the courts have accepted and applied this form of incapacity.
In Swissport SA (Pty) v Seanego & others 2017 It was held that the employer provided services for SAA on the premises owned by ACSA. The employer and ACSA concluded a Service Level Agreement that governs the employment relationship and entitles ACSA to restrict entry to their premises, should the need therefor arose.
In 2014, ACSA blocked two employees from accessing its premises on suspicion that they were intoxicated. As a result of this, their permits were revoked. The employees were issued with a notice to attend an enquiry containing the charge: Incapacity enquiry in that you were drinking alcohol at work and when they wanted to test you for alcohol you ran out of the premises.
The two employee’s services were terminated based on “supervening impossibility of performance”. The dispute was heard at the CCMA where the commissioner found the dismissal to be unfair and ordered reinstatement. It was further ordered that the employer should retrieve the permits from ACSA. If the retrieval was not possible, they should deal with the reason behind the confiscation of the permits.
The Labour Court had to determine whether the employer could have confronted ACSA without jeopardising the service agreement. The Labour Court found that the two employees were dismissed for a fair reason and in compliance with a fair procedure based on supervening impossibility of performance.
In the recent Solidarity and other v Armaments Corporation of South Africa (SOC) and others (2019) BLLR 248 LAC case, the applicant was refused security clearance which was a condition of employment and his services subsequently terminated.
The dispute was heard by the CCMA who found that the dismissal based on “operation of law” was not sufficient and therefore procedurally and substantively unfair.
On review at the Labour Court, it accepted that incapacity is not limited to inability to perform work due to illness or injury and the court was satisfied that the commissioner has erred by finding the dismissal to be substantially unfair.
On appeal at the Labour Appeal Court, the judge seemed to regard incapacity and impossibility of performance as interchangeable expressions and accepted that the substantively reason was sufficient to confirm the dismissal of the applicant but still awarded the applicant maximum compensation due to procedural irregularities (that will not be discussed in this article).
In SA Private Security Workers Union obo Noma villa and Bosasa Operators (2016), an employee’s permit was also revoked by ACSA. It was admitted by the commissioner that the case involved a permanent impossibility of performance but found that the dismissal to be unfair because the employer made little or no effort to place the employee in a post outside the airport (alternative position).
In conclusion, it is evident that our courts do recognise this type of incapacity, but employers should still ensure that a fair process is followed. Thus, an employer who anticipates terminating an employee’s services based on the supervening impossibility to perform his/her duties should ensure that the following elements (which had been identified in the Swissport case above) are considered and complied with before an employee’s services be terminated:
- Did the client block the employee’s access and does the client refuse to allow the employee back on site?
- Did the client indicate and confirm in writing that the employee would no longer be allowed on site;
- Can the employee be utilised in an alternative position where the precluding condition does not influence his incapacity to do the work;
- Did the client state the reasons why the employee is not allowed to re-enter the site;
- Did the employer attempt to resolve the matter with the client and restore the employee’s access to the client’s site?
Article by: Morné Fourie
Dispute Resolution Official – Pretoria