Source: Dorothy Khosa
Once the existence of the dismissal is established, the employer must prove that the reason for the dismissal was fair and was effected in accordance with a fair procedure. Disputes about the fairness of a dismissal must be referred by the aggrieved employee, within 30 days, to the CCMA or the appropriate bargaining council (Labour Protect, 2003).
This article will focus on dismissals that are effected as a result of an employee’s incapacity on the grounds of ill-health or injury. There are a number of instances where employees are threatened that they will lose their jobs as a result of an illness or an injury that occurred at work or outside the work environment. It is argued that “work is an important determinant of health. It can influence health positively or negatively” (Agius, 2001). The deterioration of one’s health can cause an employee to be continuously absent from work and employers are usually left with no choice but to dismiss such an employee on the basis of ill-health or injury. This is substantiated by Sidney Coad Williams, who in his video entitled “Secrets of Health Strength Fitness and a Beautiful Body will Enable you to Attain the Healthy Lifestyle that you Desire”, states that, “Your health is your greatest asset in life, wealth without health can result in a grim future”. Williams further stated that ill-health can result in some of the following scenarios:
· Life threatening diseases,
· Inability to find suitable employment,
· Premature retirement,
· Loss of earning power,
· Exorbitant medical costs,
· Premature death and
· Inability to support one’s family.
INCAPACITY: ILL-HEALTH OR INJURY
Incapacity means lacking physical or mental capabilities to perform work as a result of one’s poor health or an injury. These conditions can at times lead to an employee’s dismissal which can be effected either for a fair reason or for an unfair reason. The LRA, specifically, Schedule 8 Item 10, contains the Code of Good Practice on Dismissal. The Code states that an illness or injury of a serious nature may be a valid reason for dismissal. The specific circumstances of each case must be considered to determine the fairness of the dismissal. The first step is to determine whether the injury or illness is temporary or permanent. Where necessary, the opinion of an expert may be necessary to determine the seriousness of the incapacity, for example, an eyesight or hearing examination as well as the likely period that an employee may be absent from work (CCMA Info Sheet: Ill-health or injury, 2002). One must also note that the absence does not have to be continuous but this includes recurring periods of absenteeism.
The guidelines in cases of dismissal for ill-health and injury are clearly discussed below as per the Code:
(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.
Employees who suffer a workplace-related injury or disease (with some exceptions) are entitled to compensation from the Compensation Fund. To qualify for compensation, employees must be able to show that the injury or disease was work-related (CCMA Info Sheet: Ill-health or injury, 2002). It is fair to dismiss disabled employees only when there is no prospect of their recuperating in time during which the employer can cope without suffering significant loss as a result of the employee’s absence. In this respect, dismissal for ill-health or injury is akin to dismissal for the employer’s operational requirements (Grogan, 2001).
SOME OF THE VIEWS OF THE SOUTH AFRICAN COURTS
An illness or injury of a serious nature may be a valid reason for dismissal. The specific circumstances of each case must be considered to determine the fairness of dismissal. It is interesting to note the recent CCMA arbitration award ofHoward v Fanus Meyer Boerdery Trust ECPE 307-03. In this case, the applicant was a farm manager. He fell ill and was hospitalised for four days. After hospitalisation, he was unable to perform some of his functions. He was called to attend an incapacity enquiry, but he did not arrive, as he believed that he had already been dismissed. The applicant argued that his dismissal was both substantively and procedurally unfair. Mischke (2004) states that in these cases, it is necessary for the employer to show that either alternative work or changing the nature of the employee’s duties are considered. In this case, the respondent argued that there was no suitable alternative work and that the applicant’s duties could not be adapted to accommodate his disability. The commissioner accordingly found that the applicant was incapable of performing his duties and that no alternatives to dismissal could be found by the respondent. The dismissal was found to have been fair.
In the case of Buda v Department of Health PSHS 1331, the applicant was sick for a long period. She was examined by doctors and was found to be too sick to work. As a result she was given forms by the respondent to sign in respect for medical boarding. The applicant claimed that she was unfairly dismissed. From the evidence it was clear that the applicant was too sick to work and was even accompanied by her parents when she went to the respondent’s premises to sign the forms for medical boarding. The commissioner held that the respondent should have involved the applicant’s parents when discussing her medical condition. The commissioner further held that the applicant probably did not sign the forms for medical boarding. Even if she had signed them, the forms were not properly explained to her. Her dismissal was found to have been unfair. The respondent was ordered to reinstate the applicant to the same position she held prior to the termination of her service without any loss of benefits. This case clearly shows that ill-health does not automatically afford an employer the right to dismiss an employee unfairly. Both substantive and procedural aspects have to be followed before instituting a dismissal.
Another relevant case involved CEPPWAWU v Mahlabane and Sasol Synfuel MP 1963-03. In this case, the applicant accepted a transfer to another department at a lower position due to ill health. The applicant claimed that he was not informed that his conditions of employment would change due to his employment status. The applicant complained about his financial difficulties. Attempts were made by the employer to get the applicant positions that would put him in a better financial position. The applicant subsequently declined the alternative positions. The commissioner held that the conduct of the respondent did not amount to an unfair labour practice because the respondent had attempted to secure alternative positions for the applicant. The applicant’s claim was dismissed.
The Code of Good Practice on key aspects of Dismissal, specifically Items 10 and 11, is a useful tool to be used in instituting fair dismissals related to incapacity of employees resulting from an illness or injury, and making them unable to perform the same work or unable to work at all. The Code emphasises that employers and employees should treat one another with mutual respect. A premium is placed on both employment justice and the efficient operation of business. While employees should be protected from arbitrary action, employers are entitled to satisfactory conduct and work performance from their employees.