The LAC, however, held that an order of … medical incapacity) and be carried out fairly. We are now taking a look at the fairness of dismissal in cases of incapacity based on ill health. incapacity. If the employee's duties cannot be adapted in such a way that the employee is able to fulfil those duties, and no alternative position is available, then dismissal may be justified. Tupe transfers; Case Law; HR in practice 'How to' Guides. Dismissal for incapacity on the basis of poor work performance. You will also find free HR policies, an HR Careers Page, an Events Calendar and interesting HR articles and industry updates. UNFAIR DISMISSAL - MEDICAL INCAPACITY. Dismissal for conduct and incapacity in item (10) of schedule 8 of the Labour Relations Act 66 of 1995 singles out alcoholism as a form of incapacity that may require counselling and rehabilitation. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider, and in this instance the Policy on Substance and Alcohol abuse should be referred to. Posted on May 5, 2020 Author electrodealpro Comment(0) Post Views: 53. The arbitrator (the second respondent) found that his dismissal was unfair because the applicant, Lithotech, “did not make every reasonable effort” to accommodate the employee’s incapacity. While dismissal during the probationary period due to sickness is not uncommon, it’s important to take extra precaution to avoid claims of discrimination. Mvuleli Magawulana defended him and reports on how the case was won. NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. Some other substantial reason (SOSR) “of a kind such as to justify the dismissal of an employee holding the position which that employee held” (s.98(1)(b)). A recent Supreme Court decision has further clarified some of these restrictions. There is a thin line between cases in which intoxication can be treated as misconduct, and those cases in which alcoholism should (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. Unfair dismissal for incapacity. During the probationary period, her key performance areas were reduced. Incapacity on the grounds of ill-health or injury may be temporary or permanent. Fichera v Thomas Warburton Pty Ltd [2012] FWA 4382 (Gooley C, 24 May 2012).. Incapacity is a “no-fault” dismissal caused by a supervening impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer. It is meant purely for educational discussion and does not amount to legal advice. Purpose The purpose of this document is to provide guidelines for line managers for managing incapacity due to ill health, and to ensure that such management comply with the prescribed procedures regarding the income security benefits of employees. Dismissal: Incapacity. The treatment of other employees in the same or similar circumstances. Employers are often frustrated by employees' incapacity to work for health reasons, but they must act with care when addressing such situations. A dismissal for poor performance is only justified if the employee was counseled, offered assistance, given a reasonable time within which to improve the performance and despite being made aware of the possible consequences of a failure to improve his/her performance did not so. There are three types of incapacity: Incapacity due to illness/ill-health or physical disability, which could be temporary or permanent; Incapacity due to poor work performance; and The failure or inability of the employee to work according to the requirements of the job. What to do if your employee quits on little or no notice. There is a thin line between cases in which intoxication can be treated as misconduct, and those cases in which alcoholism should be treated as incapacity. 4. notification 5. assistance / representation 6. considerations of fairness 7. Dismissal for incapacity on the basis of poor work performance. Dismissal for medical incapacity. For a dismissal to be fair, you must prove that you had a fair reason to dismiss. A central question that arises in this context is when will it be fair and reasonable for an employer to This issue was addressed in case ADJ-00021334. 4 Incapacity Management 2017 4.4 Formal application for incapacity due to ill health: See Annexure D. 5. In Solidarity and Another v Armaments Corporation of South Africa (SOC) Ltd and Others [2019] 3 BLLR 248 (LAC), the South African National Defence refused to renew the employee’s security clearance without giving … Dismissal on the grounds of incapacity or ill health. 31 August 2005, Posted in News. The recent case of Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC)offers an illustration of the latter. In terms of item 10 and 11 of Schedule 8 to the Labour Relations Act No 66 of 1995 (LRA), an investigation should be held to determine the extent of the employee’s incapacity or injury. We will have a look at what incapacity entails and when it may be used as a fair ground for dismissal. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or … Considering dismissing an employee Dismissal is a last resort and you should consider as many ways as possible to help the employee back to work, including: getting a … Dismissals for Incapacity can be divided into two categories: Ill health or injury and Poor Work Performance. This article will highlight the aspects surrounding termination of employment based on ill health and injury. Poor Performance Hearing. The procedure for incapacity related dismissals are usually similar to the procedure in misconduct related dismissals, however, it is longer and a counselling process must be adopted. Incapacity dismissals are regarded as “no fault” dismissals because there is generally no intention on the part of an employee to contravene a behavioural standard in the workplace. Secondly, this document guides Quick guide to incapacity dismissals. – Dismissal for “Operational Incapacity” Employers are increasingly confronted with absenteeism owing to the arrest of employees. Copyright © 2020 Bregman Moodley Attorneys | Designed By, INCAPACITY AS A RESULT OF POOR WORK PERFORMANCE, INCAPACITY AS A RESULT OF ILL HEALTH OR INJURY, Specialist Divorce Lawyers In Johannesburg. The cause of the incapacity may also be relevant. Dismissal is therefore a last resort. contents. Objectives. An important factor is that the capacity or incapacity of the employee refers to past performance, and not to an " inability to meet an entry-level requirement for a new or a redesigned job." It’s understandably frustrating to hire an employee on a three to six-month probation period only for them to take some weeks off due to illness. The employer refused to allow him to return to his duties after he’d recovered and undergone reconstructive surgery, on the basis that his disfigurement was ‘cosmetically … One of the most important aspects to being an employer is knowing the intricacies of dismissals, and more particularly, when there are fair reasons for dismissal. Incapacity is a “no-fault” dismissal caused by a supervening impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer. Disclaimer If the employees are offered a lower position and a lower salary is attached to that position, then the lower salary will apply. Incapacity (or disability) is not misconduct, but can also lead to dismissal. in private, unfair dismissals by pieter 6 february 2010 2 comments. Employers should be aware that it is common for a dismissal for medical incapacity process to take a number of weeks, if not months, and there will be a number of meetings or exchanges of information. It was found that the employee was incapable of providing the necessary leadership to improve the performance of the branch and this was a valid reason for dismissal. This issue was addressed in case ADJ-00021334. However, contrary to some misconceptions, it is not impossible … Employment law update – Dismissal for incapacity. Termination if no suitable alternatives exists. Operational incapacity should furthermore not be conflated with absenteeism, which is a form of misconduct. In an attempt to protect employee interests, legal regulations provide certain restrictions on what employers can do if an employee is unable to work for health reasons. Dismissals for incapacity are divided into two classes. What remedy does an employee have if s/he has been unfairly dismissed? In this case the Adjudication Officer pointed out that Section 6 of the Unfair Dismissals Act, 1997 in Subsection 4 provides that a dismissal will not be an unfair dismissal if it results wholly or mainly from one or more of the following which would include the capacity, competence or qualification of the … Ill Health Incapacity. When dismissing an employee for incapacity, the employer must follow the principles of a fair process. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. It should always be kept in mind when dealing with incapacity whether the incapacity was caused by work related circumstances. In this regard, the Code of Good Practice: Dismissal should be considered. 4 Dismissal Where dismissal is a real option, the employer must prove that the “fault” is on the side of the employee and that genuine efforts were made to rectify the problem. Employers should be aware that it is common for a dismissal for medical incapacity process to take a number of weeks, if not months, and there will be a number of meetings or exchanges of information. A If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. While in most instances the alleged criminal misconduct is unrelated to the business of the employer, it directly impacts both the operational requirements of the employer and the employment relationship. Incapacity is an issue that has existed in our law CONTENTS. The period of probation should be determined in advance and be of reasonable duration; During the probationary period, the employee’s performance should be assessed by way of evaluation, instruction, training, guidance and/or counselling; The employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards. transfer, demotion. 2. give fair notice to the employee that the question of his/her dismissal for incapacity is being considered; 3. allow the employee to put forward his/her input before the employer makes a decision. It is a dismissal based on the employee’s incapacity to peform his/her contractual duties. Dismissal for incapacity: the employer’s obligation to reclassify. The degree of incapacity is relevant to the fairness of any dismissal. The first step in a fair procedure in this case looks like writing to the employee: to advise you are considering whether their employment can continue given their apparent incapacity; WHAT IS THE DEFINITION OF INCAPACITY? 2. how does the employer become aware of the problem? Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. Downloads Forms Unfair dismissal – medical incapacity UNFAIR DISMISSAL – MEDICAL INCAPACITY. Dismissal – real basis for dismissal considered – dismissal in essence one for incapacity (poor performance) – dismissal for misconduct improper, incompetent and unfair – employer should have applied provisions in Schedule 8 relating to poor performance whether or not the employee is capable of performing the work; and, the extent to which the employee is able to perform the work, the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and. Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. Also make sure that the correct procedures are followed regarding the incapacity hearing. INCAPACITY PROCEDURE FOR POOR PERFORMANCE AND MISCONDUCT. The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. Reasons For Dismissal. 3. Forms. We are focusing on elements of incapacity in the workplace in the form of a series of articles over the next few weeks. The criteria for termination due to medical incapacity can also depend on what is detailed in any company policies, e.g. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. The employer must look at minimising the impact of the employee's incapacity and consider alternatives that are less serious than dismissal. Dismissal for medical incapacity by The FindLaw Team. The court confirmed the importance of accommodation attempts by an employer. How to comply with the Employment (Miscellaneous Provisions) Act, 2018; Recruitment and selection. The employer must prove that the incompatibility has irretrievably damaged the working relationship. We are focusing on elements of incapacity in the workplace in the form of a series of The cause of the incapacity may also be relevant. We dealt previously with the fairness of dismissal for misconduct, and we are now taking a look at the fairness of dismissal in cases of incapacity or poor work performance. 2 Procedure for employees in respect of Poor Performance. Dismissal; Redundancy; Collective redundancy; Redundancy pay; Resignation; Retirement; Notice periods; References; Tupe. When asked to decide whether a capability dismissal is fair, an employment tribunal will consider the following key points: The nature of the employee’s illness. Dismissal during the probationary period due to sickness. In the third place, the vexed issue of dismissal of executive and managerial employees for incapacity will be examined in detail. In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. Incapacity Management 2017 Guidelines for Managing Incapacity due to Ill Health 1. During the probationary period, her key performance areas were reduced. The employer must provide the written statement within 14 days of such a request. One can distinguish between various forms of ill health and injury. The question of dismissing an employee for medical incapacity due to injury or illness is fraught with difficulty and should not be taken lightly. 2. Code of Good Practice.Dismissal (Schedule 8 2009 07 update) Form 3.1 Checklist Form 3.2 Consent to disclose medical condition May 1st, 2019. x Bookmark. Incapacity is also sometimes referred to as “incapability”, and a dismissal for incapacity means that an employee may be dismissed if he/she is incapable of doing the work which he / she was employed to do. Dismissal for medical incapacity in this treatise is reviewed with regard to the applicable statutes and the various codes of good practice as the law has evolved and developed from the period covered by the common law through that covered by the 1995 LRA up to and including the current period. Ill health or Injury: This is to be distinguished from disability, where an employee may be able to perform his/her duties with some adjustments to compensate for his/her disability. Dismissal for medical incapacity. Understanding dismissal for incapacity due to ill health . dismissed for incapacity arising from ill health. By Avi Bitton, Lawyer and Marion Franceschini, Lawyer. There is no laid down format for such an investigation however the … In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. Case of the month: Fair dismissal for incapacity: McAdie v Royal Bank of Scotland On 12 Sep 2007 in Employment law , Case law , Dismissal The Court of Appeal has confirmed that an employer can fairly dismiss an employee for incapacity even in circumstances where the employer’s conduct has caused – or contributed towards – the employee’s incapacity. ISSUES: substantive fairness in dismissal - incapacity and poor performance – negligence in performance is only gross if it borders on reckless - summary dismissal only justified where "gravely … Where an employee is perfectly able to perform in accordance with the required performance standard, but fails to do so for a reason unrelated to capacity, it may be more appropriate to treat the incident as one of … https://lanham-love.com/poor-work-performance-vs-misconduct 8 Incapacity: Poor work performance. The Fair Work Act 2009 protects an employee from being dismissed due to a temporary absence for illness or injury for up to 3 months, or up to three months in total over a 12 month period, or where an employee is on paid personal/carer's leave for the duration of the absence. fairness for incapacity in relation to both poor work performance and ill-health will be covered. By Personnel Today on 15 Jul 2011 in Employment law, Dismissal. 1. (3) The degree of incapacity is relevant to the fairness of any dismissal. In Forms, Private by Pieter 29 May 2010 4 Comments. Thus, it is obvious that the principles of procedural fairness and substantive fairness applies to such dismissals, … Understanding dismissal for incapacity due to ill health Incapacity is the inherent inability of an employee to perform work according to the employer's established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. The employee’s right to be heard and represented, Incapacity or poor work performance identified and investigated, Identify sub-standard work performance vs. standards and measurement criteria, Identify reasons for poor work performance, Agree action plan and short term objectives, Provide assistance and if necessary, training and mentoring programme, Further counselling and formal warning if poor work performance continues, Convene enquiry if poor performance continues – review counselling process and future prospects, If no prospects of improvement – consider alternatives e.g. 1. In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. One of the forms a fair reason can take is related to the incapacity of the employee. Termination for medical incapacity (also known as medical termination) is the option to end a person’s employment because they are unfit to work or incapacitated, and either: they will never be able to return to work; it is uncertain whether they will return to work or in what capacity; or; their absence will be too long for the business to reasonably support. This request can be made up to 60 days after they find out about the dismissal. An example of an organisation's INCAPACITY PROCEDURE FOR POOR PERFORMANCE (This should be drafted according to the specific needs of the organisation). The 5 steps PRIOR TO dismissal for incapacity: Ill health / injury NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. Dismissal on the grounds of incapacity or ill health. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance. In this regard, the Code of Good Practice: Dismissal should be considered. - Advertisement - The Code of Good Practice in the Labour Relations Act (LRA) sets clear guidelines on how employers should deal with incapacity in the workplace. There are many government regulations around dismissal, and as outlined in the Fair Work Act 2009 , it is not appropriate for employers to dismiss employees based on their own unsubstantiated discretion. If this was the case, then the employer Dismissal for conduct and incapacity in item (10) of schedule 8 of the Labour Relations Act 66 of 1995 singles out alcoholism as a form of incapacity that may require counselling and rehabilitation. His speech was also affected, being only between 70-80% perceptible. For specific legal advice, please consult a legal practitioner prior to application. Conclusion The first aim of these guidelines is to inform. Numsa successfully defended a member who was dismissed for incapacity arguing that the company had not followed the relevant LRA guidelines. the availability of any suitable alternative work. dismissal: medical incapacity. Only if the employee can no longer perform in his position and is unable to be accommodated, dismissal may occur. The prospects for that employee returning to work. When dismissing an employee for incapacity, the employer must follow the principles of a fair process. Incapacity hearing and general guidelines for: Dealing with employees who are unable to perform their work due to illness or injury. Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. A fair dismissal will be both for good reason (e.g. Facilitation of the process on behalf of the employer, Best practice templates for ensuring the process is strictly adhered to, Facilitating disciplinary processes (including chairing of disciplinary hearings). incapacity: ill health or injury, as a ground of dismissal and how development took place in South African legislation. 3. what procedures must be followed? The employee had attempted suicide and was badly disfigured as a result. Legislative changes. Furthermore, Armcsor had not been consistent as it had retained two employees without security clearances in the past. Definitions dismissed for incapacity, the dismissal is regarded as a no-fault dismissal. The employee was a Branch Manager at a branch that had low sales and was underperforming. Incapacity Procedure HRworks.co.za is an Online National Human Resources Directory covering all HR needs in the Human Resources Profession. rehabilitation and return to work policy, the business’ size and circumstances, how long the person has been with the company, and how you’ve treated other injured or ill employees in the past. This means that the employee must be involved with the procedure and give his/her input from the investigation stage to the dismissal. 1. what is meant by medical incapacity? Dismissals for incapacity relate the inherent inability on the part of the employee to do the job for which he or she was hired. Into the first class fall those dismissals effected because the employee lacks the skill, knowledge or efficiency to meet the employer’s standards. The dismissal was accordingly found to be substantively unfair as the incapacity would only be permanent if the outcome of the security clearance review process revealed that his security clearance was still denied. Probation (1) (a) An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed. Incapacity is a “no-fault” dismissal caused by a supervening impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to … If an employee is dismissed and was not in a trial period, they have the right to ask the employer for a written statement of the reasons for dismissal. In Ubuntu Education Fund v Paulsen NO and Others [2019] 11 BLLR 1252 (LAC), the employee was employed as a supply chain coordinator and was subject to a six month probationary period. Thus, employees are empowered to make informed decisions about the possibility of applying for incapacity status. 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