What is Incapacity?

Incapacity in the workplace refers to an employee’s inability to perform their work duties due to ill-health, injury, or poor performance, where there is no element of fault (i.e. the employee is not acting intentionally or negligently).

Note: Schedule 8 to the Labour Relations Act 66 of 1995, the Code of Good Practice: Dismissal, deals with two broad types of incapacity – poor work performance and illness or ill health.

Types of Incapacity

• Poor Work Performance (Incapacity): The employee fails to meet the required performance standards without intentional or negligent misconduct.
• Ill Health / Injury (Incapacity): The employee is unable to perform duties due to sickness or injury, either temporarily or permanently.
• Incompatibility (Incapacity): A breakdown in workplace relationships causing tension, conflict, or disharmony.

Legal Framework

The following sources govern employment relationships and dispute resolution in South Africa:

• Section 23 of the Constitution of the Republic of South Africa: “Everyone has the right to fair labour practices.”
• Labour Relations Act 66 of 1995 (LRA), including Schedule 8 (Code of Good Practice: Dismissal).
• Basic Conditions of Employment Act 75 of 1997 (BCEA).
• Employment Equity Act 55 of 1998 (EEA), where relevant.
• Other labour legislation and codes.
• Decisions by labour dispute resolution bodies (CCMA, Labour Court, Labour Appeal Court, etc.).

The LRA recognizes three legitimate grounds for dismissal:

• Misconduct (behavior-related)
• Incapacity (poor work performance, ill-health/injury, incompatibility)
• Operational requirements (retrenchments)

An overview of how to manage conduct and capacity in the workplace

It is essential for employers to fully understand all aspects of disciplinary and incapacity procedures, and the legal requirements and the rights involved. The manner in which an employer handles challenges in respect of an employee’s conduct and capacity in the workplace can impact on a case right up to the arbitration, Labour Court, Labour Appeal Court and Constitutional Court stages, should the employee decide to challenge it.

Since workplace discipline and incapacity enquiries form part of the broader dispute resolution system, it cannot be examined in isolation. In order to manage workplace discipline effectively, as a first step, employers need to have a big-picture view of the various components of the dispute resolution system that impact on workplace relationships, namely:

• the sources of South African Labour Law;
• the main pieces of employment legislation (statutes);
• the South African labour dispute resolution institutions and their roles;
• Section 23 of the Constitution: “Everyone has the right to fair labour practices”; and
• Section 185 of the Labour Relations Act 66 of 1995 (the LRA): “Every employee has the right not to be unfairly dismissed and not to be subjected to unfair labour practices.”

The right to ‘fairness’ also extends to employers. The Constitutional Court has found that the reference to ‘everyone’ in section 23 of the Constitution extends to employers as well and that the concept of fairness extends to both employers and employees. This principle is reflected and reaffirmed in Schedule 8 to the LRA, the Code of Good Practice: Dismissal (the Code).

In terms of item 3 of the Code:

“…employers and employees should treat each other 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.”

The LRA recognises three grounds or reasons on which termination of employment might be legitimate:

• The conduct of the employee (behaviour related dismissal);
• The capacity of the employee (poor performance, ill health, incompatibility);
• The employer’s operational requirements (retrenchment).

Employers and employees both have rights and obligations within the workplace. These include the need to exercise fair labour practices on the part of employers and the duty to further the employer’s business interests on the part of employees.

Disciplinary and incapacity procedures:

• The employer should deal with the breach by following the procedures that are set out in the Code or the company’s own policies and procedures.
• The Code sets out guidelines for substantive and procedural fairness in respect of dismissals for misconduct and incapacity (poor performance and ill-health/injury).
• Disciplinary procedures are used to deal with misconduct by the employee and incapacity procedures are used to deal with incapacity.
• If an employer has a disciplinary procedure, it should comply with the minimum standards as set out in the Code.

Some company disciplinary codes and procedures can be overly detailed and formalistic. Following the judgment in Avril Elizabeth Home for the Mentally Handicapped v CCMA and others (2006) 27 ILJ, where the Court commented that “the rules relating to procedural fairness introduced in 1995 do not replicate the criminal justice model”, it is not necessary for an employer to follow such complex procedures. Bear in mind, however, that an employer is always required to follow its own procedures, especially if these are contained in a collective agreement.

The following factors should be considered when applying discipline at the workplace:

• The importance of the rule breached;
• The circumstances of the offender;
• The interests of the employer and employee.

The purpose of disciplinary action should be to modify or correct behaviour and not solely to penalise employees for offences. The same applies to matters of incapacity. Incapacity proceedings should have a corrective approach to enable the employee to “get back on track” and to determine whether external sources may be the cause of the poor performance.

SICK LEAVE – MINIMUM ENTITLEMENT

Sick leave works in a three-year cycle. An employee who works five days per week is entitled to 30 days paid sick leave and an employee who works six days per week to 36 days during a three-year cycle.

During every sick leave cycle an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. An employee may take one day’s paid sick leave for every 26 days worked during the first six months of employment and thereafter an employee may take the number of days he/she normally works in six weeks during each three-year cycle.

An employee may be requested to produce a valid medical certificate if he/she has been absent from work for two days in a row or more than twice in eight weeks. If the employee does not have a valid medical certificate the employer does not have to pay the employee for the sick leave taken.

If the employee lives on the employer’s premises and it is not reasonably practical for him/her to obtain a sick certificate, the employer should not withhold payment unless the employer provides reasonable assistance to the employee to obtain the certificate.

Medical Certificates

As mentioned above, an employer may request a valid medical certificate if:

• the employee is absent from work for two consecutive days, or
• if the employee is absent more than twice in an eight-week period.

If no valid medical certificate is produced, the employer may withhold payment for the sick leave taken. However, if the employer fails to assist an employee who resides on its premises in a remote area to acquire such a certificate (when it is unreasonable for the employee to do so on their own), the employer should not withhold payment.

Sick Leave Cycles

A “sick leave cycle” is a period of 36 months (3 years). For an employee who works 5 days a week, the entitlement over this cycle is 30 days of paid sick leave; for someone who works 6 days a week, it is 36 days. During the first six months of employment, the employee accumulates sick leave at a rate of one day for every 26 days worked.

Once the employee uses up all their sick leave entitlements in a particular cycle, the employer is not obliged to pay for additional sick days taken unless otherwise agreed in a contract or policy.

COMPENSATION COMMISSIONER

With some exceptions, any employee who suffers a workplace-related injury or disease is entitled to compensation. To qualify for compensation, the employee must be able to show that the injury or disease is work-related.

JURISDICTION

Unfair dismissal disputes (ill-health or injury) must be referred to the CCMA. If the dispute remains unresolved at conciliation, it can proceed to arbitration at the CCMA or to the Labour Court, depending on the nature of the dispute and the parties involved.

DISMISSAL FOR ILLNESS OR INJURY

Illness or injury (incapacity) 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.

The first step is to determine whether the injury/illness is temporary or permanent. The opinion of an expert may be necessary to determine the seriousness of the incapacity, for example eyesight or hearing as well as the likely time that an employee may be absent, for example in the case of cancer or tuberculosis.

The absence does not have to be continuous and includes recurring periods of absenteeism.

PERMANENT INCAPACITY

Should the incapacity appear to be of a permanent nature, the employer should establish whether it is possible to:

• find alternative employment for the employee; and
• adapt the duties or work circumstances of the employee to accommodate the disability/illness.

If no such possibilities exist, then dismissal may be justified.

TEMPORARY INCAPACITY

The employer should:

• investigate the severity of the incapacity;
• the employee should be given an opportunity to state his/her case during the investigation and may be assisted by a trade union representative or a fellow employee.

If the employee is likely to be absent for an unreasonably long period of time, the employer must consider all the alternatives short of dismissal. When reviewing the alternatives and deciding what is a ‘reasonable period’, the employer must consider the following aspects:

• the nature of the job;
• the period of absence;
• the seriousness of the illness/injury; and
• the possibility of a temporary replacement.

An employee who contributes to the unemployment fund may, in certain circumstances, have the right to apply for illness benefits on account of his or her illness.

Employers should make a special effort to accommodate employees who have been injured at work or who contracted a work-related disease.

Note: In terms of case law, counselling is highly desirable when dealing with dismissal or instituting other measures relating to illness/injury in the workplace. Rehabilitation and/or counselling may be considered, for example for alcohol or drug abuse.

REQUIRED STEPS (General Incapacity Procedure)

In all cases of incapacity (poor performance, ill-health/injury), the employer should follow a fair procedure that includes:

1. Investigation: Determine the nature and extent of the incapacity (medical reports, specialist opinions where necessary).
2. Consultation: Invite the employee to a meeting, give proper notice, allow representation, and discuss possible measures to accommodate or assist the employee.
3. Alternatives: Consider all reasonable alternatives to dismissal (e.g., adapting duties, offering alternative positions, adjusting working conditions).
4. Monitoring & Review: Where incapacity is temporary, set timelines and follow up to see if the employee improves or if further accommodations are possible.
5. Final Decision: If no other solution is possible and the employee remains unable to perform their duties, dismissal may be considered (provided it is both substantively and procedurally fair).

How to manage the employment relationship where the employee is unable to work due to sickness or injury

(Ill health / injury)

A situation may arise where an employee is unable to work at all; or cannot do certain aspects of his/her job or is absent so often that it disrupts the employee’s ability to do the job that s/he is employed for, due to sickness (ill health) or injury.

If an employee is temporarily unable to work or to do certain aspects of the job and it is likely that the employee will be absent for a reasonably short period of time, the employer should consider alternatives short of dismissal. An example would be where a shop assistant has broken a leg, is on crutches and cannot stand for long periods.

If an employee is permanently unable to do the work, the employer should consider reasonably possible adaptations to the job or appropriate alternative work, prior to dismissal.

If an employee has become temporarily or permanently incapacitated or disabled as a result of a work-related accident or injury, the responsibility of the employer to accommodate the employee is greater in terms of Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal.

People with disabilities constitute a special group and unfair dismissal of such employees on grounds of ill health is very serious, as there is a duty on the employer to attempt to reasonably accommodate employees with disabilities.

The cause of the ill health may also be relevant. In the case of alcoholism or drug addiction (which is regarded as an illness) where this impacts on the employee’s ability to do his/her work, an employer may have to consider suggesting that the employee seeks counselling and rehabilitation. Where an employee does not have access to medical aid, s/he may seek to be assessed for admission into one of the different state treatment centres or outpatient programmes.

Where an employer has commenced incapacity proceedings against an employee whose substance addiction is impacting on his/her work performance, and despite reasonable efforts made to address the employee’s substance dependency/addiction, s/he is not willing to face up to this or to receive or obtain assistance, the employer may move towards terminating the employment relationship.

Mere substance abuse (alcohol or drugs) by an employee may be regarded as misconduct and should be dealt with accordingly. It is therefore important for an employer to distinguish and establish whether the employee is abusing alcohol or drugs or suffers from an actual dependency or addiction.

In the case of incapacitated employees, dismissal may be an option if the accommodation required by the employee imposes unreasonable hardship on the employer. Hardship means more than mere inconvenience. The employer must distinguish between employees who are temporarily or permanently incapacitated on the grounds of ill-health or injury as well as those who abuse sick leave which is a form of misconduct.

The following preliminary steps should be taken:

1. If an employee cannot perform adequately due to illness, request a medical certificate, report or statement from the medical practitioner which indicates the period the illness is likely to affect work performance and what type of work the employee may / may not perform.
2. Assess the medical report against the nature of the job and the probable period of absence or inability to perform certain aspects of the job. Discuss the impact of the illness on the employee’s ability to work with the employee’s supervisor / manager and the impact that this will have on the work/business operations.
3. Consider alternatives: The possibility of securing a temporary replacement for the employee; job-swopping with another employee for a period or re-assigning / adapting jobs between employees to accommodate the ill employee; short time or paid or unpaid leave of absence can be considered.

Use the following checklist to assist:

CHECKLIST: RELEVANT FACTORS TO CONSIDER: ILL HEALTH OR INJURY

• 1. What is the nature of the illness / injury?
• 2. What is the nature of the employee’s job?
• 3. What is the anticipated period of absence?
• 4. How serious is the illness / injury?
• 5. Is the injury / illness temporary or permanent?
• 6. Is the employee capable of working? If the employee is not capable, the extent to which the employee is able to work.
• 7. If the illness/injury is permanent, can alternative employment be found or can the employee’s duties or working conditions be reasonably adapted to accommodate the employee’s disability? If the illness is temporary, consider interim options.

What steps must an employer take to assist an employee who is unable to work due to sickness or injury?

An employer must meet with the employee to investigate and discuss the employee’s sickness or injury to determine the nature and extent of it (illness inquiry).

How to consult with an employee in a fair manner where the employee is unable to work due to sickness or injury:

1. The employer must invite the employee to meet and discuss the employee’s ill health / injury to determine the nature and extent of it. The employee must be given proper notice of this meeting.
2. Advise the employee that s/he may bring a representative to the consultation. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union representative only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
3. Should the employee require the assistance of an interpreter, the employer should provide this service or advise the employee that s/he may bring a fellow employee to the counselling session to assist as an interpreter.
4. Arrange an appropriate venue for the consultation and inform the relevant persons of the need to attend (for example manager or a supervisor).
5. State the purpose of the meeting and how it will run. Advise the employee to prepare properly for the meeting and bring relevant documents that s/he considers necessary to present. Inform the employee that you will be taking notes and/or recording the proceedings.
6. Go through the medical documentation and other relevant factors. Ensure that the privacy of the employee is respected and that confidential information is only used with his/her permission and for the intended purpose.
7. Explain that you want to discuss ways in which the impact on the company may be minimised without negatively impacting on the employee’s condition.
8. Explain how the employee’s role contributes to your business success and that an employer has the right to enquire about the illness / injury that may impact on performance of duties.
9. Give the employee / representative the opportunity to comment.
10. The employer together with the employee and his/her representative should look at ways to accommodate the employee taking into consideration the nature and extent of the ill health/injury and the implications for the employer/the business or organisation.
11. The employer should listen actively and open up the discussion if there are disagreements. The employer should listen and respond to the employee’s concerns.
12. The employer should propose and seek acceptance of alternatives that the employer believes are feasible in the circumstances, for example, adapting facilities to make them accessible; adapting equipment or acquiring new equipment to assist; re-organising a workplace or workstation; restructuring jobs; re-assigning aspects of jobs; adjusting work-hours; etc. Should any suggestion or option presented by the employee not be feasible for the employer, then the employer should provide valid reasons for this. In some circumstances, it may be necessary for an employer to “test” whether an option would be feasible or not.
13. Once a way forward has been agreed, the employer should provide a written summary of agreement which indicates clear time-frames, linked to the medical report(s) and prognosis. Failing agreement, the employer may make a determination after having taken into account relevant information. This should be followed by a written summary of the decision.
14. Where applicable, the adaptations should be agreed with the employee as well as a clear and reasonable time-frame during which his/her inability will be accommodated, if possible. Monitoring and reviewing the time-lines and who will conduct it should be determined.
15. The employer should obtain the employee’s commitment to providing feedback and requesting help if required, by establishing a channel for open, two-way communication between the employee and his/her manager.
16. The employer should also explain that continued illness after the current time-frame assessed for healing by the medical practitioner, might lead to termination of employment.

The employer has the right to request the employee to submit to a medical assessment by its own medical professionals, if there is any doubt as to the accuracy of the medical information provided by or on behalf of the employee.

Should the employee not manage with the measures that the employer has implemented to accommodate the employee, and the employer is satisfied that it has done everything reasonably possible to assist the employee, the employer may convene a final hearing to address the situation and to make a final decision as to the way forward.

Or alternatively: Where all alternatives are investigated during the first consultation meeting and no suitable alternatives are found to reasonably accommodate the employee, given the nature and the extent of the ill health / injury, the employer may terminate the employee’s services on the grounds of ill health / injury. An unreasonable failure by the employee to accept reasonable alternatives proposed by the employer may also lead to termination of the employee’s services.

How to manage employees affected by HIV and AIDS

In terms of item 11 of the Code of Good Practice on Key Aspects of HIV/Aids and Employment, employees with HIV/AIDS may not be dismissed solely on the basis of their HIV/AIDS status. If an employee has become too ill to perform his/her work, the employer must follow the guidelines for dismissal for incapacity contained in the Code of Good Practice: Dismissal. The employer must ensure that the employee’s right to confidentiality regarding his/her HIV status is maintained and an employee may not be compelled to undergo an HIV test or disclose his/her status as part of such proceedings unless the Labour Court has authorised such a test after an application to the Labour Court has been made. It is advisable for an employer to be familiar with the guidelines contained in the Code of Good Practice: Key Aspects Of HIV/AIDS and Employment.

HIV and AIDS in the Workplace

In terms of the Code of Good Practice on Key Aspects of HIV/AIDS and Employment, employees with HIV/AIDS may not be dismissed solely on the basis of their HIV status. If an employee has become too ill to perform his/her work, the employer must follow the guidelines for dismissal for incapacity contained in the Code of Good Practice: Dismissal.

The employer must ensure that the employee’s right to confidentiality regarding his/her HIV status is maintained, and an employee may not be compelled to undergo an HIV test or disclose his/her status unless the Labour Court has authorised such a test. Employers are advised to be familiar with the guidelines in the Code of Good Practice: Key Aspects Of HIV/AIDS and Employment.

What is the difference between managing conduct and capacity at the workplace?

The main distinction between managing misconduct and incapacity at the workplace is that while both entail a breach on the part of the employee with regard to the fulfilling of their employment obligations, misconduct involves an element of culpability or blameworthiness where the employee intentionally or negligently broke a workplace rule. With incapacity, culpability and blameworthiness are not alleged, but there is a lack of ability on the part of the employee.

Schedule 8 to the Labour Relations Act 66 of 1995, the Code of Good Practice: Dismissal (the Code), deals with two broad types of incapacity – poor work performance and illness or ill health. Incapacity implies that the employee’s poor work performance is due to conduct which is neither intentional nor negligent.

In some instances, employers may feel that an employee failed to reach the expected performance standard precisely due to some sort of intentional or negligent behaviour on his or her part. This is where misconduct and incapacity may become a bit blurred, and it is important for employers to be very clear on the perceived cause of the problem at hand so as to follow the correct path towards managing the problem.

A good example of incapacity (poor performance) is a salesperson that may have a perfectly clean disciplinary record: s/he is always on time and does his/her work diligently. Despite their best efforts, the salesperson just does not reach his/her monthly sales targets due to their target sales audience having cut its spending patterns because of the depressed state of the economy. Quite simply, the employee may be a poor salesperson, but they may be an excellent administrator.

The lack of fault on the part of the employee is perhaps the main reason why employees are not disciplined for poor work performance – an employee cannot be disciplined for something he or she cannot be blamed for. However, that inability to perform remains a ground upon which the employment relationship may be terminated as the employee is unable to do the job.

Incapacity due to poor performance requires a corrective, performance-managed approach (a poor performance procedure) prior to dismissal. Prior to dismissing an employee for ill health or injury, a separate procedure must be followed to determine the extent of the ill health or injury and the extent to which the employer is able accommodate the employee.

Incompatibility is a third category of incapacity that is not referred to in the Code. It arises in a situation where there has been a breakdown in the employment relationship because inter-personal relationships are tense, conflictual, or lacking in harmony.

In Edcon Limited v Padayachee and Others (J331/16) [2018] ZALCJHB 307 (20 September 2018) the Labour Court said in respect of incompatibility as a form of incapacity that “the golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to effect an improvement in inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory.”

In Wright v St Mary’s Hospital [1992] 13 ILJ 987 (IC) the court said: “The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony. A reasonable period must be allowed for the employee to make amends. Dismissal may be appropriate only where the employee’s eccentric behaviour is of such a gross nature that it causes consternation and disruption in the workplace. The employee must have been properly warned or counselled. The incompatibility must be one that is irremediable.”

In SA Quilt Manufacturers (Pty) Ltd v Radebe [1994] 15 ILJ 115 (LAC), the court said that: “Whilst the employer may well have good grounds to terminate the employment of its employee on account of the unrest that developed in its workforce as a result of the animosity towards the employee, the employer should adopt an adequate and fair procedure to avoid the unfair dismissal”. The court pointed out that “there must be a proper inquiry to establish that the fault lies with the worker. Mere incompatibility caused by other workers does not justify the unfair treatment of the worker who cannot get on with the others…”

An example of misconduct is when the salesperson fails to meet the sales targets due to persistent late coming and non-attendance at work without a valid reason.

The essence of misconduct lies in the fact that the employee breached a rule or standard governing conduct in the workplace (or conduct relevant to the workplace). The employee is held to blame for his/her wrongful conduct and may be disciplined by the employer.

Misconduct includes deliberate or negligent conduct. Negligence, in the context of the workplace, means that the employee failed to do what a reasonable employee in his or her position should have done. The employee’s acts (or, more usually, omissions) are measured against an objective standard – to see if the employee’s conduct differs from the standard expected from another employee in the same position.

According to the Labour Court, the distinction between poor performance and misconduct (in the form of negligence) can be determined by asking two simple questions:

• Did the employee try, but could not?
• Could the employee do it, but did not?

If the answer to the first question is ‘yes’ then one is probably dealing with a case of incapacity or poor performance, because an employee that honestly seeks to achieve what is expected of him/her but is unable to do so is incapacitated and is not behaving wilfully or indifferently.

If the answer to the second question is ‘yes’, then it is probably a case of misconduct, as this would be a situation where the employee is fully able to do what is required but failed to do so. Such failure could therefore only be because of indifference or wilfulness or failure to care (negligence).

How to determine whether the abuse of alcohol or drugs by an employee is misconduct or incapacity

The question often arises as to when alcohol abuse by an employee is misconduct and when it is incapacity. The Labour Court has held that there are two broad categories relating to alcohol:

1. If an employee is an alcoholic or dependent on drugs and needs help, then this must be dealt with as incapacity.
2. If an employee is not an alcoholic or drug-dependent but has breached a rule relating to alcohol or drugs, the appropriate approach would be to discipline the employee.

In the case of Transnet Freight Rail v TBC and Others C644/2009 the Labour Court said that:

“Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The purpose of placing such a duty on an employer is based on the current medical understanding of alcoholism - that it is a diagnosable and treatable disease. This disease results in the incapacity of the employee.”

The court further said, “In terms of how to deal with the employee, the distinguishing feature in such cases of alcoholism appears to be, as with all instances of incapacity, that the employee is not at fault for her behaviour - the employee cannot be blamed for their disease and its impact on their behaviour, and discipline would be inappropriate in the circumstances.”

Also, the court said “The category of misconduct for reporting for duty under the influence of alcohol has not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions, and can, and should be held accountable for any misconduct they commit.”

In a case that came before the CCMA involving alcohol, the arbitrator found that the dismissal of the employee for misconduct was fair. The employee, a bus driver, was found to have consumed some eight times more than the limit of alcohol permitted for driving on roads. The employee denied that he had been drinking and stated that the breathalyser was unreliable. The company had previously counselled the employee, but he had said that he did not require assistance and that he had no alcohol problem.

The Labour Appeal Court has held that an employee is under the influence of alcohol if he / she is unable to perform the tasks entrusted to him / her with the skill expected of a sober person. The nature of the work performed by the employee is a factor which should therefore be taken into consideration. The Court went on to state that a breathalyser test is not necessary, as normal observations in respect of speech, red eyes, the smell of alcohol in the breath and the like could be used to determine intoxication.

The abuse of drugs

Unlike alcohol, the effects of drug use may be harder to identify in performance or behaviour. This makes the employer’s position very difficult. Another complicating fact is that some drugs can be present in an employee’s blood stream for up to six weeks after an employee last consumed the drug. Where an employee does test positive, the employer cannot know with any certainty that the employee is “under the influence” to the extent of not being able to perform his/her job. This will have to be determined by empirical evidence (observation).

As with alcohol abuse, the same question as to whether the abuse should be treated as incapacity or misconduct arises with drug abuse. It is therefore advisable that the same test be used.

General considerations when dealing with alcohol or drug abuse

It is not always easy for an employer to know when an employee has an actual drug or alcohol dependency problem or whether it is just a case of isolated acts of misuse. While most employers do not have the required knowledge and expertise to determine whether clinical dependency exists, they can at least form an opinion of the extent of the problem that they as employers are dealing with and how best to manage this.

If the employer is uncertain as to whether there is a genuine dependency, an option is to send the employee for assessment at an alcohol / drug treatment facility. If the employee refuses to undergo such assessment to determine the extent of the dependency, the employer will be entitled to treat the matter as one of misconduct.

The following questions may be of assistance in this regard:

• What are the circumstances of the use of alcohol/drugs, i.e. did the employee have a once off binge or does s/he need to use alcohol/drugs every day?
• What is the degree of intoxication?
• Has the employee previously had problems with alcohol/drugs?
• Is there evidence of a long-term dependence on the substance?
• Does the employee acknowledge that s/he has an alcohol/drug problem?
• How did the issue come to the employer’s attention? Did the employee come forward of his/her own volition?
• Does the employee want to be helped?
• How is the employee’s use of alcohol/drugs impacting his/her ability to work?
• Does the employee’s behaviour place his/her own safety or the safety of others in jeopardy?

Where the majority of the answers lean towards a pattern of alcohol/drug abuse and drunkenness at the workplace, the likelihood of there being a dependency problem is greater and the situation should be managed as a form of incapacity.

Incompatibility

Incompatibility is a third category of incapacity that is not referred to in the Code. It arises in a situation where there has been a breakdown in the employment relationship because inter-personal relationships are tense, conflictual, or lacking in harmony.

In Edcon Limited v Padayachee and Others (J331/16) [2018] ZALCJHB 307 (20 September 2018) the Labour Court said in respect of incompatibility as a form of incapacity that “the golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to effect an improvement in inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory.”

In Wright v St Mary’s Hospital [1992] 13 ILJ 987 (IC), the court said: “The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony. A reasonable period must be allowed for the employee to make amends. Dismissal may be appropriate only where the employee’s eccentric behaviour is of such a gross nature that it causes consternation and disruption in the workplace. The employee must have been properly warned or counselled. The incompatibility must be one that is irremediable.”

In SA Quilt Manufacturers (Pty) Ltd v Radebe [1994] 15 ILJ 115 (LAC), the court said: “Whilst the employer may well have good grounds to terminate the employment of its employee on account of the unrest that developed in its workforce as a result of the animosity towards the employee, the employer should adopt an adequate and fair procedure to avoid the unfair dismissal.” The court pointed out that “there must be a proper inquiry to establish that the fault lies with the worker. Mere incompatibility caused by other workers does not justify the unfair treatment of the worker who cannot get on with the others…”