INCAPACITY AS A CONSEQUENCE OF ILL-HEALTH OR INJURY
By: Colette Tanner | Operations Director at DRG
Poor performance in the workplace refers to an employee’s consistent inability to meet the required performance standards as set out by the employer, this is often due to the employee having a lack of capacity, insufficient skills and competencies to perform the role at the required standard. Incapacity due to ill-health or injury arises when an employee is unable to perform their duties effectively due to a temporary or permanent medical illness.
Poor performance is often beyond the control of the employee and is distinct from misconduct. Misconduct refers to an employee’s unwillingness to perform their duties, an intentional behaviour that infringes on the company rules. The distinction resides in the employee’s ability to work and not their willingness to perform.
There are two recognised types of incapacity in the Labour Relations Act (LRA), poor performance based on incompetence, and incapacity due to ill-health or injury.
The LRA requires an employer to reasonably accommodate the needs of an employee with a physical or mental impediment in the event that such impairment substantially limits the employee’s ability to perform the essential functions of the job. The LRA requires that employers exhaust all reasonable alternatives that may preserve employment before pursuing dismissal. The type of reasonable accommodation required would depend on the job and its core duties; the work environment and the employee’s specific impairment. Reasonable accommodation may include modifying duties, restructuring working hours, providing assistive devices and resources, or reallocating non-essential duties.
The obligation of the employer to reasonably accommodate the employee is not unlimited. The Disability Code, issued under the Employment Equity Act, 1998 (Act No.55 of 1998) asserts that employers are not required to endure undue hardship. What constitutes undue hardship is subject to the merits of each case and includes the size and resources of the employer, the nature of the disability, and the financial and operational impact of the accommodation measures. The standard remains one of reasonableness.
Incapacity on the grounds of ill health or injury may be temporary or permanent. The Code of Good Practice: Dismissal, Schedule 8 of the LRA provides a clear polarity between temporary and permanent medical incapacity. This context is key when determining whether a dismissal is lawful. Where an employee’s illness or injury is temporary and likely to be short term, dismissal is not justified. In such circumstances, the employee should be provided with the opportunity to recuperate making use of sick leave, where paid entitlements have been exhausted, the employee will take unpaid sick leave. Absence due to illness does not, in itself, constitute a fair reason for dismissal.
Permanent incapacity arises where medical evidence reveals that the employee is unlikely to recover sufficiently in order to fully resume their duties within a reasonable period of time. In such circumstances, dismissal is not automatic and must be treated as a measure of last resort.
Process
Employers must follow a structured and documented process when incapacity arises. A thorough assessment of the employee’s impairment must be conducted; the employer should commence with an initial investigation through gathering evidence relating to the illness or impairment, which includes preliminary medical evidence such as reports from doctors, specialists or occupational therapists’ assessments. Where possible obtaining medical evidence, preferably informed by a clear description of the employee’s job requirements. Medical reports should detail the employees’ condition, when the employee is expected to recover or return to normal duty, provide detail pertaining to light duty and the period of time the light duty is required, treatment plans and work restrictions.
The process must allow for second opinions and further medical testing where requested. The employer will require the employees’ consent should the employer require independent evaluations to verify claims.
The employer is required to assess the degree of incapacity and the impact on job performance and assess the core competencies of the job against the prognosis to determine whether the jobs physical and cognitive demands are incompatible with the employee’s current condition.
The employer should investigate all the possible alternatives short of dismissal. In terms of the LRA, an employee may be dismissed for reasons relating to conduct, capacity, or for the employer’s operational requirements. Under the LRA, dismissals must adhere to both substantive fairness, which is a valid reason for dismissal and procedural fairness which is a fair process when handling the matter. This process aligns judicial expectations, promotes consistency and reduces litigation risks. Dismissing an employee for poor performance must genuinely render continued employment untenable.
Alternatives considered may include the nature of the job, the period of absence, the seriousness of the illness or injury and providing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should establish the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s impairment.
An incapacity hearing must determine whether the incapacity is temporary or permanent, whether reasonable accommodation is possible and whether dismissal is appropriate. The Dismissal Code regulates termination for incapacity, the Disability Code governs the employer’s obligations prior to dismissal, more specifically the duty to reasonably accommodate employees with disabilities. The code purports disability as a long-term (exceeding 12 months), recurring, or permanent physical, mental, intellectual, or sensory impairment that substantially limits a person’s ability to perform work-related functions.
The employer, when determining whether a dismissal arising from ill health or injury is unfair should consider, whether or not the employee is capable of performing the work; and if the employee is not capable, then the employer must determine 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 impediment or, if this is not possible, the extent to which the employee’s duties might be adapted to and the availability of any suitable alternative work.
Dismissal should only follow once all reasonable alternatives have been exhausted. If dismissal is ultimately justified, the employer must comply with contractual and statutory obligations, including payment of accrued leave, outstanding remuneration, and notice pay.
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 drug abuse, counselling and rehabilitation may be the initial appropriate steps for an employer to consider. The employer must consider carefully employees who are injured at the workplace or who are incapacitated by work-related illness. The duty of the employer to accommodate the incapacity of the employee in these circumstances is more onerous.
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 an evidence-based investigation into the extent of the incapacity, and the consideration of possible alternatives to dismissal.
