While dismissals on grounds of ill health can be fair in our law, as with all cases of dismissal, there are specific procedures to be followed.
What makes these kinds of cases all the more challenging is that there is no fault on the part of the employee; they are simply, and most unfortunately, the victims of ill health over which they have no control.
Be that is it may, our law provides for these scenarios. When considering the fairness of a dismissal on grounds of ill health, our courts, the Commission for Conciliation, Mediation and Arbitration (CCMA) and Bargaining Councils must “consider the provisions of items 10-11 of the Code of Good Practice: Dismissal, which are binding on all commissioners as dictated by the provisions of section 188 (2) of the Labour Relations Act”, as noted in the Labour Court judgment in the National Bargaining Council for the Road Freight Logistics Industry v the CCMA 7 2 others Case number 875/15.
When reading items 10 and 11 of the Code, you will find an explanation of how employees should be treated in cases of temporary and permanent ill health or injury. They are precisely the steps any one of us would want our employer to follow if we were the employee afflicted with ill health or injury.
For example, “the employer should investigate the extent of the incapacity or the injury”, “the employer should investigate all the possible alternatives short of dismissal”, “the possibility of securing a temporary replacement for the ill or injured employee” and in cases of permanent incapacity “the employer should ascertain the possibility of securing alternative employment or adapting the duties or wok circumstances of the employee to accommodate the employee’s disability”.
The schedule goes on to say that: “Any person determining whether a dismissal arising from ill health or injury is unfair should consider (1) whether or not the employee is capable of performing the work; (2) 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 (3) the availability of any suitable alternative work”.
Experience over the years shows that when the incapacity (ill health or injury) is first identified, the cards are, quite understandably, stacked in favour of the employee. The employer must show reasonable accommodation, investigate the incapacity and monitor the situation.
As time goes by, however, the pendulum swings towards the interests of the employer, which are, after all, also legitimate. It should come as no surprise that ill health can be of both a physical and mental health nature.
In “Imatu obo Strydom v Witzenburg Municipality & others (Labour Appeal Court: 2012) 7 BLLR 660, it was noted in the judgment by the judge that: “My reading of item 10 and 11 gives me the impression that an incapacity inquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the inquiry or in any suitable alternative position. I am of the view that the 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. Importantly, if the assessment reveals that the employee is permanently incapacitated, the inquiry does not end there, 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 him with alternative work if (the) same is available.
“I must mention that I have no doubt in my mind that permanent incapacity arising from ill health or injury is recognised as a legitimate reason for terminating an employment relationship and thus 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 would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.”
Finally, in short, extra special attention should be given to employees injured at work, as evident in item 10 (4) of the Schedule, which informs us that “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.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375. Email [email protected] or visit www.tonyhealy.co.za.