Dismissal on grounds of incapacity arising from illness or injury

An employer may dismiss an employee on the grounds of incapacity arising from injury or ill health provided that the employer complies with items 10 and 11 of the Code of Good Practice: Dismissal in the Labour Relations Act 66 of 1995.

An employer may dismiss an employee on the grounds of incapacity arising from injury or ill health provided that the employer complies with items 10 and 11 of the Code of Good Practice: Dismissal in the Labour Relations Act 66 of 1995.

South African courts have generally adopted a very sympathetic approach towards employees who are injured or ill, specifically when the employee's injury or illness is related to work.

Incapacity as a result of an employee's injury or illness may be either temporary or permanent.

In the case of temporary incapacity, an employer is obliged to investigate the extent of the injury or illness. An employer should take the following factors into consideration before dismissing the employee:

l the nature of the job;

l the period of absence;

l the seriousness of the injury or illness;

l the possibility of securing a temporary replacement.

In the case of permanent incapacity, an employer should first investigate all alternatives before dismissing the employee.

An employer should determine if there is the possibility of securing alternative employment for the employee or adapting the duties or work circumstances of the employee to accommodate the employee.

In the matter of Bennet v Mondipak [2004] 25 ILJ (CCMA), the employee suffered two nervous breakdowns because of work-related stress.

Fearing a relapse, the employer dismissed the employee on the grounds of incapacity and the employee referred an alleged unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA held that an employer has an obligation to fully investigate the causes of work-related stress and to explore ways to adapt the employee's job to remove the stress.

Until an employer has addressed the flaws in its system that result in the employee's stress, any offers to the employee of alternative positions are premature.

The following procedure is recommended before dismissing an employee on the grounds of incapacity arising from injury or illness:

l the employer must investigate the circumstances, nature and extent of the incapacity;

l the employee must be consulted with regard to his/her incapacity;

l the employer must take steps to reasonably accommodate the employee's incapacity;

l the possibility of alternative employment must be addressed;

l counselling (if necessary) must be provided to the employee;

l an inquiry or hearing about the incapacity must be held.

Written by Lavery Modise, a director at Routledge Modise Attorneys, who was assisted by Sian Wilkins, an associate at Routledge Modise Attorneys

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