Page 14 - KZN Business Sense-Vol6 No5

DISMISSING EMPLOYEES DUE TO INCAPACITY

Nikita Pillay, Head: HR only temporarily incapacitated ill-health, the employer must take ■ Employer’s product was not in to avoid dismissals. For this to
& Compliance, DRG (likelihood of recovery/ note that a thorough assessment demand or be effective, the consultation
Outsourcing seriousness of injury/illness) of the employee’s impairment ■ Other reason beyond the process must commence as soon
■ Provide the employee with the must be conducted, and all employee’s control. as a reduction of the workforce,
ncapacity in necessary assistance to perform alternatives must be exhausted. 3) Incapacity Hearing – Poor through retrenchments or
labour law his/her duties 2) Incapacity – Due to Poor Performance redundancies, is contemplated by
Iis the non- ■ If possible, accommodate Performance the employer so that alternatives
blameworthy the employee in a suitable If an employee’s performance can be explored.
breach of position – an employee’s status There is no doubt that does not improve to an acceptable The more urgent the need by the
performance and remuneration may alter managing an employee’s standard, termination of their business to respond to the factors
standards. (alternative employment). performance can be one of the employment may be an option. giving rise to any contemplated
This means ■ Must be fair reason and most challenging parts of any Employers cannot dismiss their termination of employment, the
that the procedure followed for manager’s role. Often by the time employees in circumstances that more shortened the consultation
employee is dismissal that the organisation’s formal are ‘harsh, unjust or unreasonable’. process might be. Urgency may
unable to cope performance management not, however, be induced by
with the work due to ill-health, a If after investigation and process commences, difficult However, it is important to be the failure to commence the
lack of performance in terms of assessment, as set out above, the and unproductive behaviours fair to employees particularly consultation process as soon as
intentional or negligent under- employee is still unable to carry are already entrenched and the when it comes to termination a reduction of the workforce was
performance, or incapacity due to out his/her work obligations and relationship between manager of employment. They should be likely. On the other hand, the
operational reasons. an alternative position is not and employee has deteriorated. given reasons for dismissal and parties who are entitled to be
feasible, the employer may give Productivity is low and patience an opportunity to respond to consulted must meet, as soon and
Incapacity – Medical Boarding reasonable notice to the employee is in short supply. those reasons. as frequently as may be practicable
Due to Ill-Health and have him/her medically What are the reasons for Poor Employers should not dismiss during the consultation process.
Medical boarding is the boarded. Performance? poor performers without
inability of an employee to work An employer may only follow having attended to the above Selection criteria that are
There are many reasons why an
according to the requirements of the dismissal route as a last resort employee may perform poorly. requirements and without having generally accepted to be fair
include length of service, skills
his/her job as a result of ill-health once all reasonable alternatives Some of the common reasons followed proper procedure. Where and qualifications. Generally, the
or injury. This is also known have been considered and proven include: the employer is unsure as to test for fair and objective criteria
as ‘no fault dismissals’ as the to be unsuccessful. ■ Employee doesn’t know what whether it is within its rights to will be satisfied using the “last in
employee is not to blame for such is expected because goals and/ dismiss a poor performer, advice first out” (LIFO) principle. There
a dismissal. An employer must ensure or standards or workplace from a reputable labour law expert may be instances where the LIFO
that there is a fair reason for should be obtained.
When employees are no the dismissal and that a fair policies and consequences are principle or other criteria needs to
longer able to carry out their procedure has been followed not clear (or have not been set) 4) Incapacity – Operational be adapted.
employment obligations due to in implementing the dismissal, ■ Interpersonal differences Reasons If an employee either accepted
the above, and alternative work otherwise the dismissal may ■ There is a mismatch between or unreasonably refused to
arrangements are not feasible, result in being substantially an employee’s capabilities Section 213 of the LRA defines accept an offer of alternative
they may be eligible for medical unfair. and the job they are required to operational requirements employment, the employees
boarding. undertake, or the employee as follows: ‘“Operational statutory right to severance pay
1) Incapacity Hearing – Ill- does not have the knowledge Requirements” means
An employer intending to Health or skills to do the job expected requirements based on the is forfeited. Reasonableness is
dismiss an employee due economic, technological, determined by a consideration of
to incapacity must do so in The above means that before of them structural or similar needs of the reasonableness of the offer of
accordance with Item 10 and the employer takes the decision Employee does not know an employer.’ The rationale alternative employment and the
11 of Schedule 8 to the Labour to dismiss an employee due whether they are doing a behind operational requirements reasonableness of the employee’s
Relations Act, No 66 of 1995 to incapacity, such employer good job because there is no typically involves measures refusal. In the first case, objective
(LRA), failing which, the must undertake an incapacity counselling or feedback on their adopted by the employer to factors such as remuneration,
fairness of such dismissal falls enquiry aimed at assessing performance cut costs, improve profit, to status and job security are
to be challenged. whether the employee is capable restructure its business, or alter relevant. In the second case,
of performing their duties, be Was it the employee’s fault that the way employees work to meet the employee’s personal
Employer duties prior to it in the position they occupied the performance standard was an operational imperative. circumstances play a greater role.
dismissal before the enquiry or in any not met? Dismissals for operational UIF – Department of Labour
Employers must: suitable alternative position. Dismissal will probably be requirements have been Employees can apply for benefits
■ Investigate the extent and cause A conclusion as to the adjudged to be unfair if the categorised as ‘no fault’ dismissals. at their nearest Department of
of injury/incapacity/illness employee’s capability or otherwise reason for the poor performance In other words, it is not the Labour if they are an employed
(nature and cause) can only be reached once a proper was that: employee who is responsible for contributor to the Unemployment
■ Establish the length of the assessment of the employee’s ■ Employer had failed to provide the termination of employment. Insurance Fund (UIF) and
employee’s absence from work condition has been made. the employee with materials Because retrenchment is a ‘no have been terminated based
– it is inappropriate to In considering whether or not ■ Required training had not fault’ dismissal and because of on Incapacity for any of these
its human cost, the Act places
dismiss an employee that is to dismiss an employee due to been given particular obligations on an reasons. 
employer, most of which are
directed toward ensuring that Nikita@drg.co.za
all possible alternatives to T: +37 (0)31 767 0625
dismissal are explored and that W: www.drg.co.za
the employees to be dismissed are
treated fairly.

The obligations placed on an
employer are both procedural and
substantive.
The purpose of consultation is to
permit the parties, in the form of
a joint problem-solving exercise, SCAN
to strive for consensus if that is QR CODE
possible. The matters on which TO SEE
consultation is necessary are listed VIDEO
in s189(2). This section requires
the parties to attempt to reach
consensus on, amongst other (Open the camera on your phone and
things, appropriate measures hover steadily for 2-3 seconds over the
QR Code to see the video.)

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