The Code of Good
Practice: Dismissal is governed by Schedule 8 of the Labour Relations Act. The
Act recognises 3 (three) grounds on which termination of employment might be
justified. These are the conduct of the employee, the capacity of the employee
and operational requirements of the business. It is the capacity, more specifically
the incapacity, of the employee that is our current focus of the article.
Incapacity based on ill
health or injury may be temporary or permanent. If an employee is temporarily
unable to work in these circumstances or the employee has used too much sick
leave due to ill health, the employer should investigate the extent of the
incapacity or illness. If the employer discovers that the employee is likely to
be absent from work for an unreasonably long period, the employer should
investigate all the possible alternatives short of dismissal. In other words,
the employer should attempt to accommodate the employee in any other way other
than dismissal as an ultimate last resort.
Section 1 of the Act
read with Section 27 of the Constitution both refer to the right of every
person to fair labour practices. This is particularly relevant as the employee
has the right and should be allowed the opportunity to state a case in response
to the investigation and to be assisted by a trade union representative or
fellow employee.
The investigation
conducted by the employer into the circumstances of the employee should be
approached from a mindset of attempting to resolve the problem by some sort of
counselling and not from a mindset of misconduct and discipline.
What is the test to
determine whether dismissal arising from ill health is fair or not?
Any person faced with
answering the above-mentioned question should always consider whether or not
the employee is capable of performing the work. If the employee is not capable
of performing the work, then the extent to which the employee is able to
perform the work, the extent to which the employee’s work circumstances might
be adapted to accommodate the illness and the availability of any suitable
alternative work for the employee must be considered.
The above
considerations were confirmed in Steenwerke
v Bobbejaan N.O. and Others where the Court emphasised the factors to be
considered when any person determining whether a dismissal arising from ill
health is unfair or not. The Court went further by stating that item 10
of Schedule 8 places a duty on the employer to make recommendations or find
alternative duties for the employee and not the other way round.
Where the situation arises that the employee
can no longer perform work in his/her position due to an incapacity based on
ill health, the employee is unable to be accommodated and/or there exists no
appropriate alternative employment within the company or otherwise, the
employer may terminate the employment relationship by reasonable notice to the
employee.
An employer who summarily dismisses an
employee without taking into account the listed considerations mentioned above
as contained in Schedule 8 of the Labour Relations Act, stands a higher chance
of possibly acting substantively and/or procedurally unfair.