Section 188 of the Labour Relations Act 66 of 1995 (LRA) states that a dismissal is automatically unfair if the employer fails to prove- (a) that the reason for dismissal is a fair reason- (i) related to the employee's conduct or capacity; or (ii) based on the employer's operational requirements; and (b) that the dismissal was affected in accordance with a fair procedure
In respect of substantive fairness, therefore, a valid reason or ground for the termination of an employee’s employment must always exist.
Incapacity arising from ill-health or injury is recognised as a valid reason to terminate the employment relationship if items 10 and 11 of the Code of Good Practice are adhered to.
Schedule 8 to the LRA Code of Good Practice in relation to dismissal. Items 10 and 11 of the schedules:
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.
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 nature of Incapacity:
• Is the incapacity temporary or permanent?
• Is the incapacity/injury work-related?
• Absenteeism due to illness/injury.
• Is the incapacity/injury a result of an addiction to drugs or alcohol?
• Relevant medical information.
Procedural and Substantive Requirements:
1. Procedural Requirements 1.1 The employee should be notified in writing that an incapacity enquiry will be held. 1.2 The employee should receive the notice before the enquiry to ensure that the employee has reasonable time to prepare for the enquiry.
2. Substantive Requirements
When determining whether a dismissal due to ill health/injury is fair the following should be considered: 2.1 If the employee is capable of performing their duties, if not; 2.2 The extent to which the employee is capable of performing their duties; 2.3 The availability of suitable alternative work. 2.4 Is it possible to adapt the employees working condition/ duties to accommodate the illness or disability?
Employment Equity Act No 55 of 1998 The Employment Equity Act No 55 of 1998 code of good practice should be considered when dealing with incapacity enquiries to ensure that no one unfairly discriminate against a person on the grounds of disability.
An Employer must undertake an incapacity enquiry to where the employee’s capacity and capability must be properly assessed before a conclusion as to the capability to perform their duties can be made.
A dismissal due to an employee being permanently incapacitated may be fair provided that the procedural and substantive requirements was met, a proper investigation into the incapacity took place and other alternative to dismissal was considered.
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