In the previous article’s focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals.
This article will highlight the aspects surrounding termination of employment based on ill health and injury.
It is not unusual for an Employer to be required to deal with an employee who has an illness or an injury that is affecting his/her work rendering them incapacitated either permanently or temporarily at some point in time. This scenario can be rather challenging and when dealing with incapacity resulting from ill health or injury, the fairness of such terminations will also be determined by a fair procedure and a fair reason for such termination.
Again, Schedule 8 Code of Good Practice: Dismissal (“The Code”) provides for certain guidelines to be used when contemplating dismissal on grounds of incapacity resulting from ill health or injury. The key principle of the Code, as emphasised in the previous article, is that employers and employees are required to treat one another with mutual respect. It should be reiterated that these are mere guidelines and that each case is unique and should be determined on its own merits.
The extent of the incapacity should be thoroughly investigated. When an employee falls ill or is injured, such injury and/or illness is not necessarily of a temporary nature and in some instances it could be permanent. As a result, the nature of the illness or injury must first of all be established as this will determine the cause of action that is necessitated. A full medical report should be obtained from a doctor which report ought to indicate whether such an illness or injury is of a permanent nature – naturally, this diagnosis can only be made by a registered medical practioner.
When faced with the challenge of incapacity due to ill health or injury the audi alteram partem rule (“to listen to the other side” or for that matter, listen to both sides) will always apply, affording the employee the opportunity to state his/her case. The relevant employee will also have the opportunity to be assisted by either a fellow employee or a trade union official.
Should the incapacity not be of a temporary nature, but indefinite, the employer is cautioned not to immediately revert to the termination of the employee’s services. All possible alternatives to dismissal should be explored and considered. As previously explained, the termination should be in line with the principles of substantive and procedural fairness and it follows that dismissal will be the last resort. The Code serves as a prominent guideline to determine the factors that require due consideration when an employer seeks alternatives to a dismissal. The following factors should be considered:
- Nature of the job – in other words what the employee’s job entails;
- Period of absence – whether the absence is of a temporary or indefinite period;
- Seriousness of the illness or injury;
- What the possibility will be to secure a temporary replacement for the ill or injured employee;
- In the instance where the illness or injury is of a permanent nature, the employer needs to:
- Establish the possibility of securing alternative employment for the injured/ill employee;
- Consider adapting the work environment as well as duties and responsibilities of the employee to such an extent that the employee is accommodated.
In circumstances where the illness or injury was caused by factors within the workplace, or should the employee have been on duty when injured, the employer will be faced with greater exigent circumstances as opposed to when such incapacity is not deemed work related.
The Code provides the employer with guidelines necessary in circumstances where dismissal arises from ill health or injury. The guidelines are as follows:
“Any person determining whether a dismissal arising from ill health or injury is unfair should consider-
- whether or not the employee is capable of performing the work; and
- if the employee is not capable-
- 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 disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
- the availability of any suitable alternative work”
Should the employer be forced to proceed with an Incapacity Ill Health Inquiry, the employer should turn to the above guidelines. The employee must receive adequate notice of such an inquiry and all the rights of the said employee should be explained to the employee. Should the employee require the assistance of an interpreter, the employer has to arrange and provide same.
All relevant medical reports have to be provided at the inquiry and a medical practitioner should also provide a report with the diagnosis and prognosis of the employee’s illness and/or injury.
At the inquiry it has to be established to what extent the injury/illness affects the employee’s work and more so to what extent does the employee’s absence affect the business of the employer.
Ill health incapacity is not the same as misconduct where guilt needs to be established as an ill health incapacity is classified as a “no fault dismissal”, in other words no guilt needs to be established before the Employee’s services can be terminated. Should the employer after due consideration decide that there is no alternative but to terminate the services of the Employee, such termination will be with notice and the employee will ultimately need to be paid for the notice period.
One other form of ill health incapacity that should be mentioned and explained due to its common occurrence within the workplace is addiction of employees to drugs or alcohol. The employer now has to consider counselling and rehabilitation for the specific employee. The difficulty with this is to distinguish between an employee that is merely intoxicated at work and an employee that is an alcoholic. Counselling or rehabilitation need not be offered to an employee who is merely drunk at work since this will constitute misconduct and, depending on each case, might even lead to a dismissal.
Should the employee’s recuperation from the illness or injury take an unreasonably long period of time causing the business of the employer to suffer a substantial patrimonial or other loss, termination will become relevant. All the procedural steps of the termination should have been followed for the dismissal to be substantive and procedurally fair.
In conclusion, ill health incapacity as a principle should be dealt with by an employer with a cautious approach and it should consider, amongst other things, the guidelines of the Code before termination of employment or otherwise.
Douw Breed (B.Com LLB) is a director at Barnard Inc. Attorneys
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.