Dismissals for Incapacity in South African Labour Law
Introduction
In South African labour law, incapacity is recognized as a potentially fair reason for dismissal. However, the process and considerations differ depending on whether the incapacity is due to poor work performance or medical reasons. This document explores the various forms of incapacity, the legal framework surrounding them, and relevant case law.
Types of Incapacity
1. Poor Work Performance
Poor work performance refers to an employee’s inability to meet the required standards of their job. This could be due to lack of skill, knowledge, or aptitude.
2. Incapacity Due to Medical Reasons
This type of incapacity arises when an employee is unable to perform their duties due to illness or injury, either temporary or permanent.
3. Other Forms of Incapacity
These may include:
- Incompatibility
- Loss of necessary qualifications or licenses
Legal Framework
The Labour Relations Act 66 of 1995 (LRA) recognizes incapacity as a potentially fair reason for dismissal. However, the Act requires that dismissals for incapacity be substantively and procedurally fair.
Poor Work Performance
Process for Dealing with Poor Work Performance
- Identify and investigate the reasons for unsatisfactory performance
- Provide appropriate evaluation, instruction, training, guidance, or counselling
- Allow reasonable time for improvement
- Consider alternative positions
Relevant Cases – Poor Work Performance
- Boardman Brothers (Natal) (Pty) Ltd v Chemical Workers Industrial Union (1998) 19 ILJ 517 (SCA)
- Established that employers must give employees a fair opportunity to meet required performance standards before considering dismissal.
- Somyo v Ross Poultry Breeders (Pty) Ltd [1997] 7 BLLR 862 (LAC)
- Held that for senior employees, the normal requirements of counselling and training may be relaxed, but not entirely dispensed with.
- Gostelow v Datakor Holdings (Pty) Ltd t/a Corporate Copilith (1993) 14 ILJ 171 (IC)
- Emphasized the importance of identifying the reasons for poor performance and attempting to remedy them before dismissal.
- Eskom v Mokoena [1997] 8 BLLR 965 (LAC)
- The Court held that while a dismissal for incapacity/poor work performance should be preceded by a fair hearing, it was not necessary to meticulously canvas every alleged poor work performance aspect in minute detail.
- It’s sufficient that an employee should be given a fair opportunity to meet the general charge of incapacity/poor work performance.
- The Court further held that the employer can set standards and that only if found to be grossly unreasonable should the Court intervene.
Incapacity Due to Medical Reasons
Process for Dealing with Medical Incapacity
- Investigate the extent of the incapacity
- Consult with the employee
- Consider alternatives short of dismissal
- Adapt the employee’s duties or work circumstances where possible
Relevant Cases – Medical Incapacity
- Standard Bank of SA v CCMA & Others [2008] 4 BLLR 356 (LC)
- Established that employers must make reasonable accommodations for employees with disabilities before considering dismissal.
- National Education Health & Allied Workers Union on behalf of Lucas and Department of Health (Western Cape) (2004) 25 ILJ 2091 (BCA)
- Highlighted the importance of considering alternative positions before dismissal for medical incapacity.
- AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC)
- Emphasized that dismissal for medical incapacity should be a last resort after all alternatives have been exhausted.
- IMATU obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660 (LAC)
- Held that where the assessment reveals the employee is permanently incapacitated, the inquiry does not end there.
- The employer must then establish whether it cannot adapt the employee’s working circumstances to accommodate the incapacity, or adapt the employee’s duties or provide alternative work.
- National Union of Mineworkers v Libanon Gold Mining co Ltd (1994) 15 ILJ 585 (LAC)
- The Court held that the employer had a duty to accommodate an incapacitated employee.
- The possible alternatives must be exhausted in consultation with the employee and their union.
- A-B v SA Breweries Ltd (2001) 22 ILJ 495 (CCMA)
- Confirmed that demotion might be a justifiable alternative to dismissal for incapacity.
Other Forms of Incapacity
Incompatibility
Incompatibility refers to an employee’s inability to work harmoniously with colleagues or to fit into the corporate culture.
Relevant Case – Incompatibility
Jabari v Telkom SA (Pty) Ltd (2006) 27 ILJ 1854 (LC)
- Established that incompatibility must be objectively assessed and that the employer must attempt to resolve the issue before considering dismissal.
Loss of Necessary Qualifications
This occurs when an employee loses a qualification or license that is essential for their job.
Relevant Cases – Loss of Qualifications
- Trident Steel (Pty) Ltd v CCMA & Others (2005) 26 ILJ 1519 (LC)
- Dealt with the dismissal of an employee who lost his driver’s license, which was essential for his job. The court emphasized the need to consider alternatives before dismissal.
- Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 104 (CCMA)
- The CCMA held that where an employee’s PSIRA permit was withdrawn after he was convicted and given a 3-year prison sentence, his contract could lawfully be terminated based on the permanency of the incapacity.
Alcohol-Related Incapacity
Transnet Freight Rail v Transnet Bargaining Council & Others [2011] 6 BLLR 594 (LC)
- The Court held that where there is no proof that an employee has a dependency problem, the fact that an employee was under the influence of alcohol could not be treated as incapacity.
- The Court further held that where an employee consciously consumes alcohol before reporting for duty, they were guilty of misconduct and could be fairly dismissed.
Key Differences Between Poor Work Performance and Medical Incapacity
- Origin of the Problem:
- Poor performance often relates to the employee’s skills or attitude
- Medical incapacity is due to health issues beyond the employee’s control
- Approach to Resolution:
- Poor performance typically requires training, guidance, and setting clear targets
- Medical incapacity often involves medical evaluations and considering workplace adaptations
- Time Frame:
- Poor performance usually allows for a longer improvement period
- Medical incapacity may require more immediate action, especially if the condition is permanent
- Alternative Positions:
- In poor performance cases, alternative positions are considered if the employee cannot improve in their current role
- For medical incapacity, finding an alternative position is a primary consideration before dismissal
Conclusion
Dismissals for incapacity in South African labour law, whether due to poor work performance or medical reasons, require careful consideration and fair procedures. Employers must ensure they have taken all reasonable steps to accommodate the employee and improve their performance before considering dismissal. This may include adapting working conditions, considering alternative positions, or even demotion as alternatives to dismissal.
The case law demonstrates that while employers have the right to set performance standards and make decisions based on operational requirements, they also have a duty to be fair and reasonable in their approach to incapacity. This includes giving employees a fair opportunity to meet performance standards, making reasonable accommodations for medical incapacity, and exhausting all possible alternatives before resorting to dismissal.
Each case should be judged on its own merits, taking into account the nature of the incapacity, the requirements of the job, and the circumstances of the employer. The courts have consistently emphasized the importance of following fair procedures and considering all options before dismissal, ensuring that the rights of both employers and employees are protected in cases of incapacity.