Introduction
The process of conducting an incapacity enquiry plays a crucial role in determining whether an employee should be dismissed due to their ill health or disability. This article examines the purpose and key considerations underlying incapacity enquiries, highlighting the distinction from misconduct disciplinary hearings and emphasizing the importance of a fair and unbiased assessment in accordance with South African labour law.
Legislative Framework
The primary legislative framework for incapacity dismissals is found in section 188 of the Labour Relations Act No. 66 of 1995 (LRA), which requires that any dismissal must be for a fair reason and conducted in accordance with a fair procedure. Item 10 and item 11 of Schedule 8 to the LRA (the Code of Good Practice: Dismissal) provide detailed guidance on the correct procedure to be followed in dealing with incapacity cases and emphasize the need for a thorough assessment of the employee’s condition.
It is important to note that Schedule 8 constitutes a Code of Good Practice that provides guidance to employers, rather than being the primary legislative framework itself. Section 188(2) of the LRA mandates that any person considering the fairness of a dismissal must take into account any relevant code of good practice issued under the Act.
The Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality Case
The case of The Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality ([2012] ZALAC 1; [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC)) decided by the Labour Appeal Court on 13 February 2012, serves as a significant reference point for understanding the purpose and requirements of incapacity enquiries.
Crucially, the Labour Appeal Court found that the employee’s dismissal was both procedurally and substantively unfair, overturning the original arbitration award that had found the dismissal to be fair. This case highlights the stringent requirements that employers must meet when conducting incapacity enquiries and demonstrates the consequences of failing to comply with the prescribed procedures.
Primary Purpose: Establishing the Extent of Incapacity
The primary purpose of an incapacity enquiry is to determine the extent of the employee’s incapacity through a comprehensive assessment. This involves:
- Considering current and relevant medical reports and expert opinions
- Making an informed decision regarding the employee’s ability to perform their current duties
- Assessing whether the incapacity is temporary or permanent
- Evaluating the degree and cause of the incapacity
Obligation to Explore Reasonable Accommodations
Item 10(1) of Schedule 8 specifically requires that in cases of permanent incapacity, the employer must investigate:
- The possibility of securing alternative employment for the employee
- Adapting the duties or work circumstances of the employee to accommodate the disability
- All possible alternatives short of dismissal
This obligation is particularly onerous for work-related injuries or illnesses, where courts have indicated that the duty to accommodate is heightened.
Procedural Requirements
Item 10(2) of Schedule 8 mandates that during the investigation process:
- The employee must be allowed the opportunity to state their case in response
- The employee has the right to be assisted by a trade union representative or fellow employee
- The employer must conduct a proper investigation before concluding that dismissal is justified
Key Factors for Assessment
Item 11 of Schedule 8 provides that any person determining whether a dismissal arising from ill-health is unfair should consider:
- Whether the employee is capable of performing the work
- If not capable, the extent to which the employee is able to perform the work
- The extent to which work circumstances might be adapted to accommodate disability
- The extent to which duties might be adapted where accommodation is not possible
- The availability of any suitable alternative work
Distinction from Misconduct Hearings
It is crucial to distinguish incapacity enquiries from misconduct hearings:
- Incapacity enquiries focus on assessing the employee’s capability and exploring accommodations
- Misconduct hearings deal with disciplinary issues arising from employee misconduct
- The Witzenburg case emphasized that incapacity enquiries should not be treated as misconduct hearings to ensure fairness
Consideration of Medical Information
Employers must give due consideration to relevant and current medical information provided by the employee. The Witzenburg case highlighted that:
- Relying on outdated medical reports compromises proper assessment
- Employers should allow employees to obtain second medical opinions where appropriate
- All relevant medical evidence must be considered, not just selective portions
Arbitration as De Novo Proceedings
The Witzenburg case reaffirmed the principle that arbitration hearings are conducted “de novo,” meaning:
- The arbitrator must consider all evidence presented at the arbitration, not just what was available at the original enquiry
- New medical evidence presented at arbitration must be properly considered
- The arbitrator’s assessment is not limited to evidence that was before the employer at the time of dismissal
Recent Developments
On 21 January 2025, the Department of Employment and Labour published a new Draft Code of Good Practice on Dismissal for public comment. This Draft Code expands on the current Schedule 8 provisions and addresses all aspects leading to termination of employment, including enhanced guidance on incapacity dismissals. Employers should monitor these developments as they may impact future incapacity procedures.
Consequences of Non-Compliance
The Witzenburg case demonstrates that failure to comply with the requirements of items 10 and 11 of Schedule 8 can result in:
- Both procedural and substantive unfairness
- Setting aside of dismissals on review
- Orders for compensation or reinstatement
- Potential cost orders against the employer
Conclusion
Incapacity enquiries serve a vital purpose in determining the suitability of continued employment for an incapacitated employee. By adhering to the requirements of section 188 of the LRA and the guidance provided in items 10 and 11 of Schedule 8, conducting thorough and current medical assessments, and genuinely considering reasonable accommodations, employers can ensure a fair and legally compliant process.
The Labour Appeal Court’s decision in The Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality provides authoritative guidance on these requirements and serves as a stark reminder that superficial compliance with incapacity procedures will not suffice. Employers must demonstrate genuine consideration of alternatives to dismissal and ensure that their procedures meet both the procedural and substantive fairness requirements mandated by South African labour law.
