Employers are often faced with employees who are unable to perform their duties in terms of their contract of employment due to ill-health or injury. When an employee is absent from work for prolonged periods, this may have a negative financial and operational burden on the company. The challenge which many employers face is that they still pay employees based on their particular role and function, however, the employee is no longer capable of fulfilling their role and operational requirements.

Incapacity in the workplace may be temporary or permanent in nature. It can be described as an employee’s inherent inability to perform his/her duties as set out in their employment contract. Item 10 of the Code of Good Practice: Dismissal in Schedule 8 stipulates that a distinction can be drawn between temporary and permanent incapacity as follows:
If an employee is temporarily unable to work, the employer should investigate the extent of the incapacity or injury. If an employee is likely to be absent for a period that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal to try and accommodate the employee.

It is important to remember that an employer cannot just dismiss an employee on the grounds of incapacity without a proper investigation being conducted whereby certain aspects need to be considered before an employer can dismiss an employee on these grounds.

Item 11 of Schedule 8 of the Code of Good Practice states that any person determining whether a dismissal arising from ill-health or injury is unfair should consider whether the employee can perform the work. If the employee cannot perform the work, then the following should be considered:

  1. The extent to which the employee can perform the work.
  2. The extent to which the employee’s work circumstances might be adapted to accommodate the disability, or where this is not possible, the extent to which the employee’s duties might be adapted; and
  3. The availability of any suitable alternative work.

When an employer considers dismissing an employee for incapacity, one must always consult and consider the acts which deal with incapacity in the workplace, namely: the Labour Relations Act hereafter “LRA” and the Employment Equity Act hereafter “EEA”. On the one hand, the LRA sets out the grounds on which an employee can be dismissed based on incapacity, however, in turn, the EEA states that an employer may not discriminate against employees in terms of disability (which could include a possible form of health). Careful consideration should also be given to the Compensation for Occupational Injuries and Diseases Act hereafter “COIDA”, The Occupational Health and Safety Act hereafter “OHS” and the Basic Conditions of Employment Act hereafter “BCEA”. All these pieces of legislation need to be considered and be read in conjunction with each other when an employer wants to dismiss an employee for incapacity.

In the matter of Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others JR 662/06 2008 29 ILJ 1239 (LC), the court held that a proper investigation should be held to establish the extent of the incapacity due to ill-health or injury and a proper consultation should also be held with the employee. Furthermore, the employee should be accommodated if the incapacity does not justify dismissal.

In its judgment, the Labour Appeal Court then relied on the matter of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA) and stated that:
“An employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. And it may, if it be fair in the circumstances, exercise an election to end the employment relationship”.

The court further stated that:
“It is self-evident that whether an employee is willing and able to work and when she may be in a position to do so are material considerations to which regard must be had when considering an employee’s incapacity, whether she has been absent from work for unreasonably long periods and whether alternatives to dismissal exist. The employee’s extended absence from work was not explained by way of a properly detailed medical report. The different medical certificates provided to the employer did not explain why her extended absence from work had been necessary or why her continued absence was justified. On her own version, the employee was unable to return to work and was unable to indicate when she may be able to do so.”

If an employee is absent for prolonged periods, strict application of the sick leave rules must be applied, and a medical report by a medical practitioner has to be obtained to establish whether the employee’s incapacity is of a temporary or permanent nature. It is, furthermore, important to specify if the employee can be expected to conduct his/her normal duties, whether that employee will be able to conduct his/her normal duties in the future and whether this employee can be accommodated if the incapacity for ill-health or injury is permanent.

If an employer feels that they can no longer accommodate an employee due to incapacity, an incapacity enquiry should be conducted where proper minutes are taken, and an independent chairperson should give an informed finding based on the evidence which is presented to him/her.

If you have any questions or queries relating to the above, feel free to contact your nearest CEO offices for a consultation.

Article by: Shaun Venter
Dispute Resolution Official – Pretoria