Please note that this pertains to South African Labour Relations and Best Practices.
So the final piece in this particular saga is that of dismissal due to incapacity, ill health or injury.
The first thing that we need to understand is that the employer is not obliged to keep someone on because they are ill or have been injured. The employer also has rights and as long as the proper procedures are followed, these employees can be dismissed.
The employer would need to ascertain whether or not the incapacity of the employee on the grounds of ill health or injury is temporary or permanent.
If the employee is unable to work for a while, which would make it temporary, the employer would have to investigate all the different possibilities before considering dismissal.
When checking out what other measures may be taken into consideration, it would be a good idea to have a look at factors such as, but not limited to:
a. the nature of the job;
b. the period of absence;
c. the seriousness of the illness or injury; and
d. the possibility of getting a temporary replacement to take the place of the ill or injured staff member.
When the disability or injury is of a permanent nature, the employer would need to decide if there was any possibility of securing alternative employment within the company or if the work could be adapted to fit the capabilities of the employee.
Remember that in all instances the employee must be allowed to state their case or respond to any suggestions put forward or be assisted by a colleague or a union member. The employee also has the right to request assistance from the HR department.
The extent of the injury or nature of the illness also needs to be taken into account and this too must be taken into consideration when deciding on whether the dismissal is fair or not.
Injuries that are sustained in the workplace are more difficult to process in terms of being fair or unfair as the courts appear to have more sympathy with the employee in these circumstances.
The guidelines for dismissal for incapacity due to ill health or injury are:
As usual there is always a recommended process or procedure to follow.
In order for the dismissal not to be considered unfair, the employer needs to decide whether or not the employee is capable of doing the work. If the employee is not capable, the following needs to ascertained;
i) The extent to which the employee is able to perform the work – for example, John works in the warehouse. His job is to pack stock onto the pallets. Some of the bags or boxes weigh in excess of 40 kilos. John lost his leg in an accident that occurred in the warehouse, when a number of pallets were not correctly stacked and they fell over, pinning him underneath and severing his leg. There is an opening in the administration department for a filing clerk. If John is dismissed in this instance you will be inviting trouble in through the door.
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 – for example Jane is the tea lady, who has suffered a stroke and as a result she is semi paralyzed down her right side. She is no longer able to carry trays of tea or refreshments and the company refused to buy a trolley that she can push around. If Jane is dismissed in this instance you will be inviting trouble in through the door.
iii) The availability of suitable work – for example, Alex is an Accounts Manager and he has had a heart attack and can no longer work under stressful circumstances. There is an opening for an accounts researcher. The hours are fixed, there are no deadlines and no interaction with clients, however, it is a junior position. Alex is willing to take a reasonable cut in pay but the employer feels that he is far too qualified for the position and even with a reasonable cut in pay it will be more that they wanted to pay. If Alex is dismissed in this instance you will be inviting trouble in through the door.
This concludes the series on Fair Dismissals. Next week we will be starting a new topic.