Dismissing a disabled employee may be unfair

An employee in terms of the constitution has a right to a fair labour practice.

An employee in terms of the constitution has a right to a fair labour practice.

This right includes a right to a fair dismissal. The Labour Relations Act recognises three types of dismissal, namely misconduct, incapacity and operational requirements.

Before dismissing an employee based on incapacity due to ill health, an employer must comply with the Code of Good Practice: Dismissal.

The code requires an employer to investigate the extent of incapacity or injury and all possible alternatives short of dismissal. The following are the steps that an employer needs to take:

l The employer must enquire into whether or not the employee is capable of performing the work.

l If the employee is not capable:

- The extent to which the employee is able to perform the work; and

- 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.

In the case of Standard Bank of South Africa vs CCMA and Others (2008) 4 BLLR 356 the employee employed by Standard Bank as a mobile consultant was involved in a motor accident and suffered injuries.

As a result of these injuries, she suffered a severe back pain.

The employee could not cope with travelling and therefore could not perform her duties. Having been removed from one job to the other the employee was not happy with the functions that she was asked to perform. Having assessed her performance the bank dismissed the employee.

The employee referred the dispute of unfair dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the CCMA found in her favour that her dismissal was unfair.

The matter was then referred to the Labour Court for review and the Labour Court dismissed the review application. The Labour Court held that the employer failed to comply with the above requirements and its own incapacity management guideline.

The dismissal of an employee based on incapacity may constitute an automatic unfair dismissal in terms of section 186 of the Labour Relations Act or discrimination in terms of the Employment Equity Act.

- Sandile July is a director at Werksmans Attorneys