Incapacity in an employment context refers to situations where an employee is unable to perform their job to the required standard due to reasons like ill health, injury, or poor performance. This can lead to a potential dismissal based on the employee's inability to fulfill their job duties, but it must be handled with due process to ensure fairness.
The Process & Legal Framework
Ill Health or Injury:
- Consulting with the employee. Seeking medical opinions to understand the nature, extent, and prognosis of the incapacity. Considering reasonable accommodations or alternative employment that the employee might be able to perform. Section 185 of the LRA states that every employee has the right not to be unfairly dismissed, which extends to dismissals for incapacity.
- Consulting with the employee.
- Seeking medical opinions to understand the nature, extent, and prognosis of the incapacity.
- Considering reasonable accommodations or alternative employment that the employee might be able to perform.
Section 185 of the LRA states that every employee has the right not to be unfairly dismissed, which extends to dismissals for incapacity.
Poor Work Performance
For dismissals related to poor work performance, employers must:
- Clearly define the performance standards.
- Provide adequate training, guidance, or counseling.
- Allow reasonable time for improvement after identifying deficiencies.
- Document all steps taken to assist the employee before considering dismissal.
Key Legislation & Case Law
Section 188 of the LRA outlines that dismissals for incapacity must be for a fair reason and handled through a fair procedure. This means that even when an employee is genuinely unable to perform, the process to reach that conclusion must be just
HOSPERSA v MEC for Health, Eastern Cape (2000): This case underscored the need for employers to exhaust all reasonable alternatives before dismissing an employee due to medical incapacity. The court found the dismissal unfair due to lack of adequate exploration of alternatives like part-time work.
Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007): Although primarily about fairness in arbitration, this case impacted how incapacity dismissals are reviewed, emphasizing that decisions must be reasonable and not only procedurally but substantively fair.
Possible Outcomes:
- Retention with Adjustments: If incapacity can be managed through accommodations like modified duties, reduced hours, or retraining, the employee might continue employment under new terms.
- Medical Boarding: In cases where health prevents work resumption, a medical boarding process might lead to an end of employment with agreed compensation or pension arrangements.
- Dismissal: If no reasonable adjustments are possible and performance does not improve, dismissal might be the outcome. However, this must always be a last resort after all other avenues are explored.
- Legal Challenges: Employees can challenge a dismissal for incapacity if they believe the process was unfair or if they can demonstrate that alternative measures were not adequately considered.
For employers, understanding and applying these principles ensures that any action taken due to incapacity is legally sound and ethically defensible, while for employees, knowing their rights helps in navigating these often challenging situations.