General incapacity has become a big discussion point in all relevant forums as the term ‘general incapacity’ is not specified in Schedule 8 of the Labour Relations Act (LRA).
The concept of general incapacity entails that there are some external factors that preclude an employee from performing his duties, the result of which might make the continued employment of the employee untenable. Incapacity should not be limited to ill health, injury or poor work performance.
A general incapacity procedure can be used in certain matters. Should a general incapacity procedure be followed when a client of the company refuses access to a certain employee?
A case in point
In Swissport SA (Pty) v Seanego & Others 2017 the employer-provided services for SAA on the premises owned by ACSA. The employer and Airports Company South Africa (ACSA) have concluded a Service Level Agreement that governs employment and entitles ACSA to restrict and/or refuse entry to the premises.
In terms of the Service Level Agreement, the employer is bound to comply with the terms of ACSA’s access control policy. A material breach of the agreement could lead to the cancellation of the contract which would ultimately lead to the employer losing a big client.
In 2014 ACSA blocked 2 employees from accessing the premises on suspicion that they were intoxicated and their access permits were revoked.
The employer maintained that the onus to get their permits back rested on the 2 employees but that the employer will support and assist them in their quest. The 2 employees took no steps to approach ACSA with a view to obtain the restoration of their permits.
Disciplinary action
The employees were issued with a notice to attend a hearing stipulating the charge as follows: “Incapacity hearing in that you were drinking alcohol at work and when they wanted to the test for alcohol you ran out of the working place and the permit was confiscated by ACSA and on that you can’t perform your duties.”
At the hearing, the 2 employees’ services were terminated on the basis of “supervening impossibility of performance”.
The CCMA Commissioner awarded reinstatement and ordered that the employer should retrieve the permits of the 2 employees from ACSA and if not possible, to deal with the reason behind the confiscation of the permits (intoxicated on duty).
The case goes to court
The case was reviewed in the Labour Court. The Court referred to SA Private Security Workers Union obo Nomavilla and Bosasa Operators (2016) where the employee’s permit was also revoked by ACSA. The Commissioner admitted that the case involved a permanent impossibility of performance, but found the dismissal to be unfair because the employer made little or no effort to place the employee in a post outside the airport, in one of its other operations (alternative position).
In the Swissport case, it was a matter of pure speculation as to whether the employer could have convinced ACSA to restore their permits. The Labour Court doubted whether the employer could have confronted ACSA over the revocation of the permits without jeopardising the service agreement, as the 2 employees refused to acknowledge any wrongdoing. It was not a case where ACSA could have been approached on the basis that it would give the employees another chance.
The Labour Court found that the 2 employees were dismissed for a fair reason and in compliance with a fair procedure.
General incapacity
It became clear from the above matter that no procedure as specifically stipulated in Schedule 8 of the LRA could have been followed to resolve this matter due to the fact that ACSA refused to allow the employees back on the site. It was also impossible for the employer to resolve this matter with ACSA. The only possible way to resolve this matter was to follow the general incapacity procedure.
It is evident from the Swissport case that if a general incapacity is to be followed, the following elements had to be identified and are essential to answer before an employees’ contract could be terminated based on general incapacity:
- Did the client block the employees’ access and does the client refuse to allow the employee back on site?
- Did the client confirm in writing that the employee would no longer be allowed on site?
- Can the employee be utilized in an alternative position where the precluding condition does not influence his capacity to do the work?
- Did the client state the reasons why the employees are not allowed to re-enter the site?
- Did the employer attempt to resolve the matter with the client and restore the employee’s access to the client’s site.
The Courts have different opinions on when an employee’s contract could be terminated based on general incapacity. It is, however, clear from all case law considered that the employer should first do all in his power to resolve the situation between the client and the employee. If the client refuses to allow an employee on site due to performance issues, the employer should first start with a poor work performance enquiry if possible, in order to get the employees’ work performance up to standard.
It is very important to understand that a general incapacity based on the client refusing access to an employee could only be utilized as a last resort.
ABOUT THE AUTHOR
Chris van Straaten obtained his Bachelor of Laws degree from The North-West University, Potchefstroom in 2013 and was admitted as an attorney in 2016. He joined SEESA Labour as legal advisor in February 2016 at our Head Office in Pretoria.