Dismissal due to ill health or injury falls under the law governing dismissal for incapacity, as stated in section 188 of the Labour Relations Act. For the dismissal to be fair, the reason must be fair, and fair pre-dismissal procedures must be followed. The Code of Good Practice on dismissal, which forms schedule 8 to the LRA expands on these requirements. In general, the employer should attempt to exhaust all avenues before turning to dismissal.

When can an employee be dismissed due to ill health or injury?

An employee can be dismissed if all the following conditions are met: he is unable to perform his work to a significant extent, he cannot be accommodated in an adapted work environment or arrangement, no suitable alternative work can be found and the illness or injury lasts for an unreasonably long duration, depending on the nature of the work.

Inability to work

Most importantly for fair dismissal, the ill health or injury must directly prevent the employee from carrying out her work. For example, a person who becomes blind cannot work as a driver, but somebody who seriously injures a foot could still perform seated office work. The incapacity need not be physical – employees who are affected by mental health illness caused, for example, by excessive stress are also included in this definition.

Nature of the illness or injury

An employee who falls seriously ill or is injured may be incapacitated temporarily or permanently. In each case, different considerations apply. If the incapacity is temporary, the employer must consider the likely duration and judge whether the employee will be absent for an unreasonable amount of time, based on the nature of the job. A researcher involved in a long-term project can probably be absent for a month or two, while a news editor of a daily newspaper cannot be away for more than a few days at a time. The employer must consider the possibility of hiring a temporary employee for the time missed. If the injury or illness is permanent, the employer should attempt to find other work for the employee in the organisation.
Further considerations should relate to the seriousness as well as the degree of the incapacity. A milder, shorter-term illness or injury should be considered differently to a more serious one. In addition, the employer should assess to what degree the employee has become incapacitated – for example, whether the employee has lost the use of a finger or of both her arms.

Other arrangements

Before taking the last step of dismissing the injured or ill employee, the employer must consider making other arrangements for that employee. First, could the employee perform the same work in a different way – for example, from home? Second, could the work environment be adapted to accommodate the incapacity, for example with the installation of a wheelchair ramp? Third, if the employee cannot perform the same work as before, could she be given different work within the company? For example, if a salesperson can no longer travel to her clients, she could conduct the meetings by phone, or could be given the non-travelling job of sales coordinator.

If all of these considerations have been taken in consultation with the employee, and if there is still no possibility of retaining the employee, then he may be dismissed fairly. The requirements are less strict for small companies that cannot afford to support an unproductive staff member.

The University of Cape Town of Cape Town (Law@Work) Practical Labour Law course starts on 6 September 2010. For more information contact Abby on 021 685 4775 or email abby@getsmarter.co.za or visit www.getsmarter.co.za

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