By Juan Jordaan
Durban Branch
An employment contract creates reciprocal duties between the employer and the employee. Thus in any employment relationship, an employee is under a positive obligation to perform the duties and render the services agreed to and provided for in the contract of employment between the two contracting parties. The logical inference that can be drawn from this obligation is that the employee must therefore be able to actually do the work that the employer requires the employee to do. A question that often arises is what happens in a situation where an employee is incapable of performing his job or duties that were agreed to in the employment contract due to ill health or injury for example. What rights do the employer and employee have regarding this situation?
Du Toit et al* state that, "A fair reason for dismissal related to capacity essentially involves the employer's legitimate loss of confidence in the ability of the employee to perform in accordance with the contract of employment." In Schedule 8 Part 10 of Labour Relations Act 66 of 1995, the legislation is clear on how to approach these types of situations.
Firstly, the Act distinguishes between temporary or permanent incapacity. If an employee is temporarily unable to work, meaning that the employee would be taking sick leave for a set period, there is an obligation placed on the employer to investigate the extent of the injury including how long the employee will be incapacitated, the nature of the injury and how it will affect the employee's prospects of performing the job in the future.
Secondly, if the employer finds that the employee is likely to be absent for a time that is unreasonably long, the employer should investigate any possible alternatives short of dismissal. The Act suggests that relevant factors to this investigation 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 employee.
If an employer finds that the employee is likely to be permanently incapacitated, the Act further states that the employer should find out whether it is possible to secure alternative employment for the employee, or whether the employee's duties and job could be adapted to accommodate the employee's disability.
If the employee's incapacity is of a permanent nature, the possibility exists that the employee can be dismissed. As with all dismissals, it must be a) substantively fair, and b) procedurally fair.
What this means for the employer in an incapacity case, is that the employer must determine the extent to which the employee can perform the duties, and whether the duties can be adapted. Du Toit suggests that the employer "is relatively free, within the parameters of the contract of employment or any applicable collective agreement, to determine the nature of the work required of an employee". This shows that an employer is given a reasonable right to determine what they want the employee to do for them and there is very few objections that the employee may have, unless the job or duty is unlawful, contra bonos mores or unreasonable.
In the case of Davies v Clean Deale CC (1992) 13 JLJ 1230(IC), the Industrial Court found that an investigation or hearing into the employee's capacity is necessary, where the employee can state their case and protect his/her interests and present information regarding the incapacity and the extent to which the employee can perform the duties previously performed. After consulting with the employee, the employer should consider modifying or adapting the employee's duties. The employer must, however, if the duties cannot be adapted, consider whether the employee can be placed in another position even if it is at a lower salary.
Procedurally, the steps laid out in Schedule 8 part 10 are very important. It sets out that the investigation that the employer undertakes, should allow for an opportunity for the employee to state his case and to be represented by a trade union representative such as a shop steward or a fellow employee.
It must be noted that the degree of the incapacity plays a vital role, as well as the cause of the incapacity and also how and where it occurred. This may influence the fairness of dismissal for incapacity.
If for example the employee is suffering from an alcohol or drug dependency, the employer may need to consider counselling or rehabilitation. The Act also states in Schedule 8 part 10, that where an employee was injured at work while performing his duties, the employer is under a greater duty to try and accommodate the employee in the organisation.
To summarise, it seems that the law is clear on how an employer should act when an employee has become incapacitated due to an illness or a debilitating injury. Because the employee cannot render the services that they have contracted to do, it is a breach of the employment contract. This does not however mean that the employee can automatically be held liable or dismissed for the breach. Illness or injury is not something that any person plans to happen, and for this reason, the legislator has provided this process in order to ensure that both parties to the employment contract play an objective role in determining the future of an employment relationship. The Act therefore presents a clear process that needs to be followed to ensure that the employee is given an opportunity to explain or reason with the employer regarding the future of the employment relationship.
In the event that you have identified and employee in your organisation that is incapacitated due to ill health, contact your Labournet consultant who will assist you in drafting the necessary documentation and facilitate an incapacity investigation.
Not yet a Labournet client, but would like to know more about our services and products, visit our Labournet website or send a mail to Sales and they will contact you to set up an appointment.
Disclaimer
The information published in this article or newsletter is of general nature and should not be used without obtaining specific advise as to its application in your business or under your specific circumstances. LabourNet will accept no liability if the information is used without first obtaining specific advise from one of our consultants
*Du Toit et al (2008), Labour Relations Law: A Comprehensive Guide, LexisNexis, Durban, p. 412.