AS UNCOMPASSIONATE as it may sound, employers are not obligated to indefinitely employ an employee who is habitually absent on grounds of ill health.  

Incapacity is one of the three kinds of dismissal allowed in our law, with the other two being misconduct and operational requirements (retrenchments, in essence).  

Section 11 of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) gives specific guidelines on what is expected of employers who dismiss employees on grounds of ill health or injury.  It reads: “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 capable 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.”

Quite rightly, employers need to tread carefully when contemplating the dismissal of an employee on grounds of ill health or injury. Let’s face it, we all get sick sometime or may sustain an unavoidable injury and we would want our employer to show us some patience and compassion. That, in a nutshell, is what the Labour Relations Act tells employers to do before contemplating dismissal.

While some employers have temporary and permanent risk benefits that are available to their employees in circumstances of this nature, it is not always the case. Other employers do not have such risk benefits for staff, as cost to company remuneration structures become more common-place. Some employers simply can’t afford to offer such risk benefits to their staff.

So, if an employee is excessively absent on grounds of ill health or injury and there are no risk benefits, what are the options available to the employer?  Section 11 of Schedule 8 of the Labour Relations Act largely provides the answer. 

So does case law, which helps us understand how the relevant legislation and the Code of Good Practice are to be interpreted and applied in practice.

The Supreme Court of Appeal, in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA), confirmed 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.”

A recent Labour Appeal Court judgment casts more light on this subject.  It was the case of Parexel (Pty) Ltd v Chakane & others (Case number JA39/2018) which, among other things, noted that: “It is self-evident that whether an employee is willing and able to work and when she may be in a position to do so, are material considerations to which regard must be had when considering an employee’s incapacity, whether she has been absent from work for an unreasonably long period of time and whether alternatives to dismissal exist.”

The judgment continued that: “The appellant (employer) was not required to hold the employee’s position open for her indefinitely when she had failed to provide any clear basis as to the reasons for an anticipated extent of her continued absence.”

The employer held an incapacity hearing to assess the viability of the ongoing employment of the employee on grounds of incapacity. In this regard, the court held that: “The appellant (employer) proceeded by way of an incapacity inquiry to determine whether the employee’s absence from work had been unreasonably long or not. Implicit in such a determination was a consideration of the reasons advanced by the employee for her absence and the extent of such absence. Since very distinct reasons had been provided by different doctors for the employee’s absence, the appellant requested the employee to provide it with a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within such recovery could be anticipated. Yet, in spite of offers of assistance made by the appellant to the employee, no such medical report was provided by her.”

In the final analysis, employers must make reasonable accommodation of ill health or injury-related employee absenteeism.  Indeed, the job specification and work environment, if possible, should be modified to accommodate the employee.  Suitable alternative positions should also be considered, if they exist.

That said, employers are not obligated to endure prolonged ill health or injury absenteeism indefinitely.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit Call 0861 115 375 or email [email protected]

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