Labour Relations Act, 1995 (Act No. 66 of 1995)

Codes of Good Practice

Dismissal based on Operational Requirements

Schedule 8

Part F - Incapacity

21. Incapacity: Ill health, injury and other forms of incapacity
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(1)Incapacity on the grounds of physical or mental ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee.

 

(2)In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

 

(3)In the process of the investigation referred to in sub-item (1), the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

 

(4)The degree and cause of incapacity is relevant to the fairness of a dismissal on this ground. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

 

(5)Particular consideration should be given to employees who are injured at work or who are incapacitated by a work-related illness. In these circumstances, the duty on the employer to accommodate the incapacity of the employee is more onerous.

 

(6)Incapacity may be unrelated to ill health or injury and may arise due to other factors preventing the employee from performing the applicable duties of the job, including imprisonment. Such incapacity may be temporary or permanent. The employer should assess the extent of the incapacity and investigate all possible alternatives short of dismissal.

 

(7)An employee's incompatibility, as manifested by an inability to work in harmony with an employer's business culture or with fellow employees, can constitute a form of incapacity which may justify dismissal.