To date, there are over 275 000 confirmed cases of the virus in South Africa.

Due to the close proximity of employees in workplaces, it is imperative that employers consider the risks posed by the virus and the legislative obligations as employers. On any day they run the risk of people who are infected with the virus bringing it into the workplace.

 

Employers are required in terms of the Occupational Health and Safety Act (OHSA) to take precautionary measures to protect the workplace and its employees from the spread of communicable diseases such as COVID-19.

 

The Department of Employment and Labour has issued directives and regulations that require employers to provide and maintain safe working environments that are free of hazards. The onus falls on employers to protect their workers from the risk of contracting Covid-19 or the spread of the coronavirus by eliminating any existing or potential hazards from the working environment.

 

In terms of these directives, employers must ensure that everyone involved in their business operations – workers, customers, clients, suppliers and contractors – must not be exposed to any hazards that could jeopardise their health or safety. Irrespective of their size, all businesses, industries and entities (private and public) that are permitted to operate must designate a COVID-19 Compliance Officer.  The Compliance Officer must oversee the implementation of the employer’s workplace plan as well as adherence to the standards of hygiene and health protocols relating to COVID-19 in the workplace.

 

All employers must prepare a workplace plan, dealing with the following issues:

  • which employees are permitted to work;
  • what the plans for the phased-in return of their employees to the workplace are;
  • what health protocols are in place to protect employees from COVID-19; and
  • the details of the COVID-19 compliance officer.

 

Workplace plans must be retained for inspection.

Businesses, industries and entities must develop measures to ensure that the workplace meets the standards of health protocols, adequate space for employees, and social distancing measures for members of the public and service providers.

 

All the relevant health protocols and social distancing measures set out in the applicable Directives, and applicable sector-specific health protocols, must be adhered to. This includes the Occupational Health and Safety Directive issued by the Minister of Employment and Labour.

 

Incapacity, however, refers to the situation where an employee is unable to carry out or perform his/her contracted obligations due to the inherent inability on the part of the employee.

 

In terms of the employment relationship, the incapacity procedure will be used, where the following allegations, inter alia, are made:

  • Incapacity due to serious and/or chronic ill health,
  • Incapacity due to poor performance,
  • Incapacity due to excessive sick leave/absence.

 

If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. In circumstances where the employee has exhausted his/her paid sick leave entitlement, sick leave will then be unpaid.

 

If, however, the employee’s incapacity is permanent (making continued employment in his/her current role impractical) dismissal is possible, but as a last resort. The Code of Good Practise requires the employer to first consider all reasonable ways in which the employee’s employment may be preserved.

 

An employer intending to dismiss an employee due to incapacity must do so in accordance with items 10 and 11 of Schedule 8 to the Labour Relations Act, No 66 of 1995 (LRA), failing which, the fairness of such dismissal falls to be challenged.

 

Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. Items 10 and 11 of the schedule provides as follows:

Item 10: Incapacity: ill-health 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 cases 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 and to 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 courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.”

 

Item 11: Guidelines in cases of dismissal arising from ill-health or injury:

“Any person determining whether a dismissal arising from ill-health or injury is unfair should consider:

           (a)   whether or not the employee is capable of performing the work; and

           (b)   if the employee is not capable:

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and

(iii) the availability of any suitable alternative work.”

 

The above means that before the employer decides to dismiss an employee due to incapacity, such employer must undertake an incapacity enquiry aimed at assessing whether the employee is capable of performing their duties, be it in the position they occupied before the enquiry or in any suitable alternative position. A conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made.

 

It is important to note that if the assessment reveals that the employee is permanently incapacitated, the enquiry must continue and the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity, or adapt the employee’s duties, or provide the employee with alternative work, if available.

 

An employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal in these circumstances may be fair, provided that it was based on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.

 

Article by: Marco Horak

Dispute Resolution Official – Upington