We have noticed in recent months that many of our members are uncertain about incapacity proceedings. In September, we will be focusing on various incapacity processes. We will discuss their purpose and application. We hope that the information will be of value to our members and provide them with a greater understanding of the incapacity process.


What is an incapacity?  What forms of incapacities are there? How do I, as an employer, know that I have dismissed an employee with fair reason due to an existing incapacity? All these questions are relevant, and a thorough understanding of certain principles relating to the incapacity process is of vital importance to all employers, as incapacity procedures can be very sensitive in nature and should also be dealt with accordingly.


In the labour law context, incapacity processes have various forms: poor-work performance, ill-health or injury and general incapacity. Poor-work performance, for example, can be defined as a no-fault breach of performance standards as set out by the employer.


In contrary to incapacity procedures, disciplinary procedures are instituted due the breach of performance as set out by the employer with an intentional or negligent action and/or omission by an employee/s.  In other words, disciplinary action is followed due to a blameworthy breach of the employer’s rules by an employee or by employees.


Incapacity based on poor-work performance and incapacity based on ill-health is recognised in the Labour Relations Act (Scheduled 8 – Code of Good Practice:  Dismissal). General incapacities have been developed through various court decisions.


One of the fundamental principles governing incapacity processes, and specifically poor-work performance processes, is that the employee being subjected to the process should be given a reasonable opportunity to remedy the defect, this is done through counselling, guidance and training. In the case of an ill-health process, the employer must attempt to accommodate the employee. Should the employee fail to meet the performance standard, or the employer be unable to accommodate the ill employee, the employer may terminate the employment relationship.


As the abovementioned termination will follow a no-fault procedure, generally, notice pay will be applicable, in terms of section 37 of the Basic Conditions of Employment Act (BCEA).


  • Poor work performance incapacity – which can also be linked to an employee’s probation period

This first type of incapacity exists in a scenario where a reasonable performance standard is set, of which the employee is clearly aware of or could reasonably be expected to have been aware of, which standard is objectively attainable, and the employee is unable to reach said standard due to no fault of their own – they are simply not able to meet the standard despite their best efforts.


Procedural fairness, in this case, will then include that the employee be given a fair opportunity to remedy the defect in his performance, failing which dismissal with notice can follow. An example of such a scenario can be made out of a car salesperson who has a set number of cars to sell per month, but who is unable to meet this target.


  • Ill health – or injury incapacity:

This second type of incapacity exists where an employee is too ill or is injured (on or off duty) to such an extent that he can no longer perform his duties, again, due to no fault of their own.


Procedural fairness in this instance will include a medical report being obtained advising of the extent and duration of the illness or injury and the temporary- or permanent impact it will have on the employee’s abilities to resume his duties, which will then assist the employer in deciding whether alternative measures short of dismissal will be considered or whether dismissal is the only reasonable option available to the employer.


An example of such a scenario can be made of a person who is a heavy machine operator working in a dusty environment, who develops an illness (e.g. tuberculosis) that prevents that employee from working in such an environment.


  • General incapacity:

This third type of incapacity exists where an impediment prevents the employee from performing his duties. General incapacities typically manifest where an employer, for example, employs a foreigner whose working permit lapses, or, an employee who is employed as a driver has their driver’s license revoked.  Both of these scenarios are examples of a general reason that can exist, which prevents an employee from performing his duties.


Procedural fairness, in this case, will include, for example, affording the employee time off (paid via leave or unpaid via unpaid leave) to apply for, renew or to obtain their working permit or driver’s license.  If this effort by the employer to give the employee sufficient opportunity to remedy the existing defect bears no fruit, and there are no alternatives short of dismissal that can be considered, dismissal may be warranted.

An onus remains on employers to consider all possible alternatives and measures short of dismissal before terminating the employment relationship for reasons based on an incapacity and to ensure that they have given the employee all the available assistance, taking reasonability into account, e.g., but not limited to the following:

  • Assistance related to training, guidance, counselling and generally assisting the employee to reach a performance target standard;
  • Time to improve performance to reach a performance target standard;
  • A fair and reasonable opportunity to improve their performance to reach a performance target standard;
  • Time off to heal to reach a performance target standard;
  • Time off to obtain documentation (i.e. a working permit or a driver’s license) to reach a performance target standard.


If these measures prove not to satisfy the employer’s required performance target standards, an employer also has the further onus to consider measures short of dismissal, e.g. offering the employee an alternative employment position to accommodate the employee.


Remember that dismissal is always a last resort, as the ideal is to get an employee to reach a certain performance target standard or to alternatively accommodate such an employee.


Article by: Johan van Dyk

Dispute Resolution Official – Cape Town