4 June 2021
CIRCUMSTANCES IN WHICH DISMISSAL OF ILL OR INJURED EMPLOYEES ARE ALLOWED.
While the Labour Relations Act allows for the dismissal of ill or injured employees, it also aims to provide job security to employees and to prevent such dismissals as far as reasonably possible. Prior to dismissing an employee, an employer is compelled to consider appropriate alternatives and to get input from the employee on alternatives before the employee is dismissed.
In this regard, The Code of Good Practice: Dismissal requires that an employer should reasonably attempt to accommodate an employee that is injured or ill. Potential means to accommodate an employee may include adapting existing work facilities, reorganizing workstations, securing alternative employment and adapting the work circumstances or duties to accommodate the employee.
It is important to note that an employer will not need to accommodate an employee if this would impose an unjustifiable hardship on the business of the employer. In this regard an unjustifiable hardship may be described as an action that requires significant difficulty or expense, and that would considerably harm the viability of the employer’s business.
Bhengu & another and Transnet Freight Rail (2013) 34 ILJ 2711 (BCA)
In Bhengu & another and Transnet Freight Rail (2013) 34 ILJ 2711 (BCA), two employees persistently insisted that they were too ill to work however failed to provide any proof of the illness and did not co-operate with the employer’s efforts to accommodate them. They were consequently dismissed, and the commissioner found their dismissals to be fair.
In order for a case of dismissal due to incapacity or ill health to be fair, there needs to be both substantive and procedural fairness.
Substantive fairness in cases of dismissal for injury or illness could entail the following:
- The employer must make an informed decision;
- The employer must determine whether or not the employee is capable of performing the work;
- If the employee is not capable of performing the work, the employer must:
- Determine 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 the employee,
- Where this is not possible, the extent to which the employee’s duties might be adapted.
Procedural fairness would entail that the employee gets an opportunity to respond and make suggestions with the help of a fellow employee or union representative, that the employee is consulted with, that the employer considers all available medical information, and that the employer attempts to accommodate the employee where reasonably possible.
Rosh Pinah Zinc Corporation (Pty) Ltd v Muronga (LCA 36/2012 [2013] NALCMD 3
In Rosh Pinah Zinc Corporation (Pty) Ltd v Muronga (LCA 36/2012) [2013] NALCMD 3, an employee was injured in a motor vehicle accident not related to work and could no longer perform his duties. The employer accommodated him in various temporary positions and ultimately offered him a permanent position but on a lower job grade. The employee refused the offer to work at a lower-income and the employer dismissed him based on incapacity. The dismissal was found to be fair.
It, therefore, becomes clear that should the requirements for substantive and procedural fairness be met, that an employer may dismiss an employee as a result of incapacity due to ill health or injury.
Contact Invictus on 0861 737 263 for any queries/assistance regarding dismissals relating to incapacity.
Invictus Group is here to assist you through the process.
