Encapsulating incapacity

Labour legislation requires an employer to reasonably accommodate the needs of an employee with physical or mental impairments in the event that such impairment substantially limits the employee's ability to perform the essential functions of the job. The type of reasonable accommodation required would depend on the job and its essential functions; the work environment and the employee's specific impairment. It would be considered unlawful to request an employee to perform tasks that he/she is not able to perform due to ill-health.

Generally, when employees are no longer able to carry out their employment obligations, due to ill-health or injury, and alternative work arrangements are not feasible, they may be eligible for medical boarding.

In the event that the employee's medical condition does not improve, resulting in the employee's continued inability to perform the functions of their employment, the employer should consult the employee to explore the possibility of alternative employment appropriate to the employee's capacity. Only in circumstances where the employee can no longer perform in the position, the employee is unable to be accommodated and/or there exists no appropriate alternative employment, may the employer, terminate the employment relationship by reasonable notice to the employee; that is, medically board the employee.

An employer intending to dismiss an employee due to incapacity must do so in accordance with item 10 and 11 of Schedule 8 to the Labour Relations Act, No 66 of 1995 (LRA), failing which, the fairness of such dismissal falls to be challenged.

Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal. Items 10 and 11 of the schedule provides as follows:

"10: Incapacity: ill-health or injury

(1) Incapacity on the grounds of 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 might 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. 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.

(2) In the process of the investigation referred to in subsection (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.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. 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.

(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

11: Guidelines in cases of dismissal arising from ill-health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider:

   (a)   whether or not the employee is capable of performing the work; and

   (b)   if the employee is not capable:

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

(iii) the availability of any suitable alternative work".

The above means that before the employer takes the decision to dismiss an employee due to incapacity, such employer must undertake an incapacity enquiry aimed at assessing whether the employee is capable of performing their duties, be it in the position they occupied before the enquiry or in any suitable alternative position. A conclusion as to the employee's capability or otherwise can only be reached once a proper assessment of the employee's condition has been made.

It is important to note that if the assessment reveals that the employee is permanently incapacitated, the enquiry must continue and the employer must then establish whether it cannot adapt the employee's work circumstances so as to accommodate the incapacity, or adapt the employee's duties, or provide the employee with alternative work if same is available.

In considering whether or not to dismiss an employee due to ill-health, the employer must take note of the following:

• a thorough assessment of the employee's impairment must be conducted and;
• all alternatives must be exhausted.

Permanent or continued incapacity arising from ill-health or injury may be recognised as a legitimate reason for terminating an employment relationship. An employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. A dismissal in these circumstances may be fair, provided that it was based on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.