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.