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(SCHEDULE 8)

Incapacity arising from ill-health or injury is recognised as a legitimate reason for terminating the employment relationship, provided as always, it is done fairly.¹¹⁷

Schedule 8, Item 11¹¹⁸ encourages all persons (including the courts, commissioners, arbitrators) to consider the following factors when determining if a dismissal arising from ill-health/injury is fair:

• Whether or not the employee is capable of performing the work.¹¹⁹

• If the employee is not capable:¹²⁰

- the extent to which the employee is able to perform the work;

- the extent to which the employee’s work circumstances may be adapted to accommodate the disability;

- the extent to which the duties might be adapted to accommodate the disability;

- the availability of suitable alternative employment.

Item 10 further elaborates on the above as follows:

“(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 employee 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

117 Grogan Workplace Law supra.

118 Code of Good Practice: Dismissal.

119 Item 11(a).

120 Item 11(b).

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.”

The above Code has once again reflected the guidelines laid down by the Labour Courts over the past decade.¹²¹

Investigating the extent of the incapacity clearly obliges the employer to review both the extent of the illness/injury as well as possible ways of adapting the employee’s work to accommodate such disability. This investigation would require the employer to consult with the employee (and his representative) on examination of the impact of the disability on the employee’s performance.¹²²

The seriousness of the incapacity is highlighted by the Code¹²³ in terms of time weighted considerations and draws a distinction between temporary absences due to illness or injury and those that endure for a time that is “unreasonably long in the circumstances”.

It would appear that dismissal would be accepted if the employer can prove that the absence was unreasonably long. What may be deemed to be unreasonably long appears to be dependent on the circumstances which should be evaluated according to the following factors:

• strategic importance of the employee’s job to the employer;

121 See Davies v Clean Deale CC (1992) 13 ILJ 1230 (IC) also at 1232G-1233B.

122 Davies v Clean Deale CC supra at 35; AECI Explosives Ltd v Mambalu supra n 2 at 1515;

National Union of Mineworkers v Libanon Gold Mining Co Ltd supra 10 at 589C.

123 Item 10(1) supra.

• length of service;

• case of finding a replacement for the disabled person;

• financial capacity of the employer;

• prospect of recovery of the employee;

• effect of the absence on other employees.

Problems may arise where repeated absence of short durations occur. The courts have upheld dismissals for habitual absenteeism (malingering) even if for medical reasons.¹²⁴

The nature of the incapacity should eminate from illness or injury and as such any physical disability will qualify to be considered under this item of the Code. It is suggested in the Code¹²⁵ that special consideration must be given to work related sickness or injury. Special mention is also made of employees who are addicted to drugs or alcohol, the employer in such cases being advised to consider counselling and rehabilitation.¹²⁶

The Code does not indicate at who’s cost this counselling and rehabilitation should be and therefore one can safely assume that it would be for the employee’s own cost.

It should also be noted that all sectoral determinations as well as the provisions of the Basic Conditions of Employment Act must be taken into account in all the above considerations. While it has been held that an employee may be dismissed for incapacity despite not having exhausted the sick leave entitlement¹²⁷ it should be noted that dismissals should only be considered when abuse of sick leave is

124 In AECI Explosives Ltd (Zomerveld) v Mambalu supra n 2 the court warned that both forms of dismissal must be treated in the same way, in that both forms of incapacity require counselling and consultation.

125 Item 10(4) supra.

126 On the approach to be adopted when an employee is incapacitated by medication taken to alleviate psychological stress, see Spero v Elvey International (Pty) Ltd (1995) 16 ILJ 1210 (IC).

127 Basic Conditions of Employment Act supra Chapter 3 Item 22.

apparent or when the employee’s illness will clearly exceed the statutory or contractual entitlement.¹²⁸

With regard to possible alternatives and/or adoption of the environment the Code¹²⁹ recommends that these be given serious consideration as possible alternatives to dismissal, providing reasonable assistance and/or equipment to help the employee cope with the disability. Alternatively, alternative work should be found which would be suitable for the disabled employee.

In terms of Item 10(2) of the Code the employee is entitled to be counselled and may

“state a case”. This right puts to rest all the arguments as to whether a hearing is necessary or required before dismissing an employee for incapacity. The inquiry need not be a type of disciplinary enquiry, rather an investigative type of enquiry so as to attempt to find alternatives and explore all possible scenarios.

It is submitted that it will only be fair to execute a dismissal of a disabled employee when there is no prospect of their recuperation or the period of recuperation would cause irreparable harm to the employer through significant losses as a result of the employee’s absence.

It is in this respect that dismissal for ill-health or injury is similar to an operational requirements dismissal.¹³⁰ Both fall under the category of no-fault dismissals.

128 In Hendricks v Mercantile & General Reinsurance Co of SA Ltd supra the following test was suggested “whether because of the employee’s absences and incapacity, having regard to the frequency and duration of such absences and the effect they have on his co-workers’ morale, the employer could in fairness (not) have been expected to wait any further before considering dismissal”. The court found that test may be applied even before the employee has exhausted his/her contractual sick leave. See also Croucamp v Le Carbonne (SA) (Pty) Ltd (1995) 16 ILJ 1223 (IC).

129 Item 11(b) supra.

130 National Union of Mineworkers v Rustenburg Base Metals Refineries (Pty) Ltd (1993) 14 ILJ 1094 (IC) where the court found that an incapacity dismissal could be treated as a form of redundancy.

4.3 ROLE OF THE CODE OF GOOD PRACTICE: KEY ASPECTS ON THE