Incapacity is the inherent inability of an employee to perform work according to the employer's established code of conduct.
In this blog we will look at incapacity from a general ill health perspective.
Incapacity on the grounds of ill health or injury may be temporary or permanent.
An employer should establish whether or not the employee is capable of performing the work; and
If an employee is temporarily unable to work, 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, the employer should investigate all the possible alternatives other than dismissal
If the employee is not capable;
the extent to which the employee is able to perform the work;
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
the availability of any suitable alternative work.
The Court, in the case of Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA), which in paragraph 31 held 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”.
Labour legislation requires an employer to reasonably accommodate the needs of an employee with physical or mental impairments in the event that such impairment substantially limits the employee's ability to perform the essential functions of the job. The type of reasonable accommodation required would depend on the job and its essential functions; the work environment and the employee's specific impairment. It would be considered unlawful to request an employee to perform tasks that he/she is not able to perform due to ill-health.
Generally, when employees are no longer able to carry out their employment obligations, due to ill-health or injury, and alternative work arrangements are not feasible, they may be eligible for medical boarding.
An employer intending to dismiss an employee due to incapacity must do so in accordance with item 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.
Dismissal for ill-health incapacity is a no-fault category of dismissal. It’s therefore inappropriate for an employer to “discipline” an employee for being sick or injured. The effect of this would be to blame the employee for being unable to perform the work because of a physical or mental disability.
The incapacity may be temporary or permanent. Either way, it’s pointless to use the disciplinary procedure or to issue a “warning” to get better or be dismissed. These cases call for a different process, one that’s compassionate. The process is called the counselling procedure. Its purpose is to assist the employee to recover and to get back to productive work as soon as possible.
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.
If it’s a temporary condition, the employer should consult with the employee to find out what treatment is needed and how long it could take to recover. The employee should be allowed reasonable time off for medical treatment and recovery time. The time off should be paid sick leave for whatever days are due to the employee. The employer could agree but is not obliged to a longer paid or unpaid time off after the employee’s sick leave has been exhausted.
The employer is not expected to keep the employee indefinitely beyond a reasonable period. What is reasonable will depend on the facts of each case. If these efforts don’t succeed, the employer can terminate the employee’s employment for ill-health incapacity. The employer should pay contractual notice pay and may pay an extra discretionary goodwill payment.
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 same is available, in order to avoid medical boarding.
In considering whether or not to dismiss an employee due to ill-health, the employer must take note of the following:
a thorough assessment of the employee's impairment must be conducted and;
all alternatives must be exhausted.
Permanent or continued incapacity arising from ill-health or injury may be recognised as a legitimate reason for terminating an employment relationship. 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. As with temporary incapacity, the employer should pay contractual notice pay and may pay an extra discretionary goodwill payment.
Procedural Fairness For Ill-Health Incapacity Checklist
Pre-Enquiry Ill-health Counselling
Conduct an investigation
Consider ways to adapt the employee’s duties
Consider ways to adapt the employee’s workplace
Consider other options to accommodate employee
Consider other alternatives to dismissal
Before deciding to convene a hearing, consider:
the nature of the job
the period of absence
the seriousness of the illness
the possibility of securing a temporary replacement
the possibility of extended ill-health leave
the possibility for medical boarding
Comments