Introduction:
In the realm of labour law in South Africa, incapacity refers to situations where an employee faces difficulty in meeting their performance standards without any blame or fault assigned to them.
This can arise due to poor performance (incompetence) or health-related issues (temporary or permanent).
To address such situations, a specialized incapacity procedure is implemented, focusing on supportive measures rather than disciplinary actions.
In this guide, we will walk you through the incapacity procedure and the steps involved in managing employee incapacity in a fair and empathetic manner.
Understanding Incapacity:
Incapacity in labor law involves instances where employees are unable to perform their duties up to the required standard, but this underperformance is not due to intentional or negligent actions on their part.
There are two recognized types of incapacity: poor performance and ill-health or injury. It is important to note that the incapacity procedure is not a disciplinary process and does not involve issuing warnings to the employee.
Counselling Process – Level 1 Intervention by Management:
- Measure and Identify Under-Performance: During the first counselling session, the employee’s actual performance will be compared to the expected performance standards. Specific areas of under-performance will be identified and communicated to the employee.
- Determine the Cause: The reason behind the inability to meet the required standard or poor performance will be explored. If it is related to health, a medical report will be obtained to assess the nature and impact of the condition on the employee’s job.
- Develop an Action Plan: An action plan will be devised to address the identified issues. The employee’s input will be sought to determine practical steps and interventions to be implemented within a specific time frame.
- Provide a Reasonable Timeframe: The employee will be given a reasonable period to implement the action plan and improve performance or address health issues if applicable. The length of this period will depend on the nature of the job and the content of the action plan.
- Monitor Progress: The employee’s progress will be regularly monitored during this period through formal counselling sessions. The number of sessions will depend on the situation and progress made. In cases of ill health, additional medical reports may be required.
- Consider Alternatives: If the employee remains unable to meet the required standard despite interventions, the employer will explore reasonable alternatives to dismissal. This may include considering a different position, adapting the employee’s work circumstances, or providing temporary replacement.
The Incapacity Hearing – Level 2 Intervention by Management:
- Purpose of the Hearing: An incapacity hearing will be conducted if the employee’s performance does not improve despite counselling or if the degree of incapacity is significant.
- Notification and Preparation: The employee will be informed of the alleged incapacity and given at least 24 hours to prepare for the hearing. They are entitled to be assisted by a fellow employee of their choice.
- Employee’s Right to Present Evidence: During the hearing, the employee will have the right to be heard and present evidence or witnesses in their defense.
- Decision-Making: The chairperson of the hearing will evaluate the degree of improvement potential, the impact of incapacity on the organization, and the effectiveness of previous interventions.
- Consideration of Alternatives: Before considering termination, the possibility of alternative redeployment to a suitable position will be explored, taking into account the employee’s skills and personal circumstances.
- Appeal Process: The employee has two working days after receiving the decision to lodge an appeal in writing to the chairperson, stating the grounds for the appeal.
Conclusion:
The incapacity procedure is designed to address performance issues without assigning blame. It involves a supportive and participative approach to help employees improve and find suitable solutions.
By following this step-by-step guide, employers can manage incapacity situations fairly and compassionately, ensuring the well-being of their employees while maintaining a productive work environment.