Lavery Modise

Incapacity is the failure or inability of an employee to work according to the required standard of the job. It encompasses poor work performance.

Incapacity due to ill health or injury differs from poor work performance, because no fault can be attributed to the employee.

In a case of poor performance due to ill health the employer is expected to assist the employee to remain in the employment in as far as this is reasonably possible.

If an employee is temporarily unable to work, the employer should investigate the extent of the incapacity if the employee is likely to be absent for a long period of time. Before the employer makes a decision to dismiss the affected employee, he is required to investigate all possible alternatives short of dismissal.

The employee's medical certificate is very central to this investigation. It is from the medical certificate that the employer will get information regarding the extent and the probable period of the employee's incapacity.

If the employee fails to produce a medical certificate, the matter should be treated as an ordinary disciplinary issue and not a matter of incapacity.

Most importantly, it is necessary that the employee be given a chance to state his or her case during the investigation.

Dismissal should be considered only as a last resort.

Furthermore, the following must be considered before deciding to dismiss an employee:

l The degree of incapacity

l The period of incapacity

l The cause of incapacity

l Is the employee still capable of performing some of his or her duties? If yes, consideration should be given and the employee should be employed on that basis.

l To what extent could the employee's duties be adapted?

l If the adaptation is not much and would not be costly for the employer, this option should be considered.

l Is there any alternative work available?

l Does the employee suffer from a disability?

l What is the possibility of disability benefits?

In National Union of Mineworkers vs Libanon Gold Mining Co the Labour Appeal Court held that "while an employer may not be obliged to retain an employee who is not productive, a proper assessment must be made of whether that situation has been reached before the employer resorts to dismissal".

In Hendricks vs Mercantile & General Reinsurance Co of SA, the Labour Appeal Court held that "the substantive fairness of dismissal depends on the question whether the employer can fairly be expected to continue the employment relationship bearing in mind the interests of the employee, the employer and the equities of the case.

"Relevant factors would include inter alia the nature of the incapacity; the cause of the incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer's operations; the effect of the employee's disability on the other employees and the employee's work record and length of service".

The test, it was added, "remains whether because of the employee's absences and incapacity ... the employer could in fairness have been expected to wait any longer before considering dismissal".

This approach has been held to apply both in cases of periods of absence from work and irreversible impairments of their capacity or ability to perform the duties for which they were employed.

nLavery Modise is a director and Sicelo Mngomezulu, an associate, at Routledge Modise in association with Eversheds