First – what is ill health incapacity?
Incapacity due to ill health refers to a situation where an employee is unable to carry out or perform their contracted obligations due to an illness or injury. Incapacity on the grounds of ill health maybe temporary or permanent.
What must employers do?
When faced with an ill health incapacity enquiry, the employer must investigate the following:
- The nature and extent of the incapacity.
- The nature of the employee’s job.
- The period of the absence.
- The possibility of a temporary replacement for employee (if the illness/injury is temporary).
If the employee’s incapacity is permanent after a medical prognosis was made, the employer must consider:
- The possibility of alternative employment (e.g. a different job description).
- The adaptation of work duties in order to accommodate the employee.
- The possibility of medically boarding.
An employer can only dismiss the employee as a last resort after having considered all reasonable alternatives.
A practical illustration
In NUMSA obo Josias v Tedelex Trading (Pty) Ltd the employee was incapacitated as a result of injuries sustained on duty and was then dismissed. He initially sustained injuries to his neck and back which was later aggravated when a television fell on his head. While he was absent undergoing medical treatment he made a request that his workstation is adapted to suit his injury. However, his employer ignored this request. An incapacity hearing was then held and the employer offered the employee an alternative position for half of his salary, or alternatively, he would be dismissed. The employee declined both offers and was subsequently dismissed and given 22 weeks’ salary as severance pay. The Commissioner held that the employer could have accommodated the employee by adapting his workstation to suit his injury. Further, giving him an ‘either/or’ was also unfair. The fact that his injury was caused at work was also not considered. The employer who was responsible for the accident should have been more pro-active and has failed to meet the requirements set out in the Labour Relation Act. The Commissioner held that the dismissal was substantively and procedurally unfair and awarded compensation of 30 weeks’ salary.
ABOUT THE AUTHOR
Risha Singh obtained her LLB degree in 2009 and thereafter completed her articles with Legal Aid SA and was admitted as an Attorney in 2012. She is a SEESA Labour Legal Advisor at our Durban office.