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Dismissal for Incapacity due to Ill-Health

Written by Michelle Vernon

South African Employment Law allows for 3 types of dismissal – Misconduct, Operational Requirements, and Incapacity.  Incapacity is then split into 2 distinct forms – Poor Performance and Ill Health.  Here we consider incapacity due to ill health.  It is important to remember that this type of dismissal is a “no fault” dismissal and must be sensitively dealt with by the employer.  In my experience, this is an area that employers are particularly reluctant to deal with, even where employees are clearly abusing their sick leave.  As with any type of dismissal, paying attention to the procedural and substantive fairness of the matter can help you deal with it effectively.

The bottom line is that an employer requires its employees to be at work and working during normal office hours and, where required by the nature of the work, occasional work after-hours.  All employees should be able to perform at their full capacity with minimal disruptions and exceptions.

If an employer wishes to consider dismissing an employee for ill-health, they must gather all their supporting proof and documentation and convene an incapacity investigation.  The employee is entitled to participate in this investigation, which may require further medical investigation, and the employee can also be asked to demonstrate their ability.  It must be a full investigation into the nature and extent of the illness, injury, or cause of incapacity.  The desired outcome of the investigation is to establish the prognosis and examine the employee’s ability to work as required and perform optimally.  The employee has the right to be heard and represented during the process.

In considering the substantive fairness of a dismissal based on incapacity due to ill-health, the Labour Appeal Court has accepted that “persistent absence from work because of genuine ill-health is a legitimate ground on which to terminate employment, and one that relates to the capacity and not the conduct of the employee.  The passage from Hendricks v Mercantile General Reinsurance Company (quoted with approval in Mambalu) is also authority for the proposition that substantive fairness in these circumstances requires an assessment of whether the employer can fairly be excepted to continue the employment relationship given the nature of the incapacity, its cause, the prospect of recovery, improvement or recurrence, the period of absence and its effect on the employer’s operations and on other employees, and the employee’s work record and length of service”.  (Judge J van Niekerk in General Motors South Africa vs NUMSA and 6 Others).

It is worth noting that the effect on other employees is specifically mentioned.  What kind of message would be sent out to the other employees if the employer consistently looked over the unhealthy employee’s absences?

The test is whether (because of the employee’s absences and incapacity, and considering the frequency and duration of such absences, and the effect that it has on the employee’s co-workers’ morale) the employer in all fairness can be expected to wait any longer before considering dismissal.  This approach has been held to apply both in cases of lengthy absence, and in cases of intermittent absences from the workplace.  One of the respondents in the GMSA case had been absent intermittently for 130 (one hundred and thirty) days in three years.  That appears neither right nor fair.

There are certain rules to be followed in determining fairness:

  • Is the employee capable of performing the work that he/she was employed to do?
  • If not, what is the extent to which he/she is unable to perform those duties?
  • Can the employee’s tasks be adapted to enable the employee to perform those duties?
  • Is there available and viable alternate work?
  • Is there an alternative to dismissal?

If the employee’s duties cannot be adapted in such a way that the employee is able to fulfill those duties, and no alternative position is available, then dismissal may be justified.  If the employee is offered a lower position and a lower salary is attached to that position, then the lower salary will apply. As always, the principles of procedural fairness and substantive fairness apply to such dismissals, as it applies also to all types of dismissal.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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