What happens when an employee becomes unable to perform their duty for reasons beyond their control? Be it the suspension of a driver’s licence, expiration of a work visa, imprisonment, or legislation that has been promulgated rendering the employee incapable continuing their work, how does an employer deal with such a situation? Does the employer retrench the employee based on operational requirements set out in Section 189 of the Labour Relations Act (LRA) or follow the general incapacity procedure set out in Schedule 8 of the LRA?
The matter is contentious; however, the under-mentioned case has clarified what factors an employer should consider when determining which procedure should be followed.
The FNB v CCMA and Another JR1476/2016 dealt with a situation where an employee referred a dismissal to the CCMA after being dismissed through a general incapacity procedure for failing to meet legislative requirements and continue his employment. The Commissioner refused to accept general incapacity as he believed that the incapacity under Schedule 8 of the LRA was only limited to ill-health or poor work performance. The Commissioner, therefore, believed that the employee should have been dismissed for operational requirements set out in Section 189 of the LRA.
Judge Coetzee disagreed with the Commissioner, accepting the general incapacity procedure set out in Schedule 8 of the LRA and was satisfied that the employer had followed the correct procedure given the circumstances of the case.
Judge Coetzee confirmed that:
- Where the dismissal is due to the employer’s decision to restructure their business, the employer must follow the operational requirements procedure; and
- Where the dismissal is due to circumstances that render an employee’s continued employment impossible, the employer must follow the general incapacity procedure.
It is, therefore, concluded that it is paramount for the employer to determine the exact reason for the dismissal to ensure that the correct procedure is followed.
ABOUT THE AUTHOR
Kamini received her LL.B and LL.M degrees from UKZN in 2013 and 2014 respectively. She then served her articles at a civil litigation firm and was admitted as an attorney in 2016. Kamini joining SEESA as a Labour Legal Advisor in May 2017.