There seems to be an influx of incapacity dismissals as a result of ill-health over last the 12 months, especially regarding absenteeism as a result of COVID. In most of these enquiries the employees, our members, were ‘found’ to be incapacitated due to their ill-health, emphasis on ‘found’. ‘
The question that arises is ‘how did the employer make a finding that an employee is medically fit or unfit for duty?’ Your employer should be guided by your absenteeism on the one hand and the medical certificates issued by a registered medical practitioner, these two must go hand in hand. Regardless of this general rule, a number of employers still get it wrong as was highlighted in a recent ‘Ill-Health/Incapacity’ dismissal dispute, where we had to consider the substantive fairness of our member.
The Genesis of an Ill-Health/Incapacity Enquiry
Dismissal is not prohibited in terms of the Labour Relations Act, 66 of 1995 (LRA), there is a standard prerequisite, that is fairness in procedure and fairness in the reason for the dismissal.
In terms of Item 10 of Schedule 8 of the LRA, employers are to consider the following alternatives and/or factors before dismissing employees for ill-health. That is, the nature of the job; the period of absence; the possibility of a temporary replacement for the ill or injured employee; possibility of alternative employment or adapting the duties or work circumstances of the employee to accommodate the illness or disability of the employee.
Excessive Medical Certificates Default in Dismissal, or not?
In a recent dispute heard by the Labour Court in Atlantis Foundries (Pty) Ltd versus NUMSA obo Brown and Others (C867/2017) 2020 ZALCCT 25 (27 August 2020), Brown’s dismissal relating to ill-health/incapacity was ruled procedurally and substantively unfair. In this dispute the Labour Court, in determining whether the ‘frequent absenteeism for various illnesses’ justified dismissal, had regard to the year prior to the absenteeism.
In doing so the court determined that Brown had a long history of good attendance; that there exists a prima facie reason to believe there might be an underlying cause for Brown’s illness; the cause of the various illnesses was not investigated by a psychologist; and Brown did not complete the Employee Assistance Program (‘EAP’) he was participating in; and that the employer never obtain any feedback on Brown’s progress under this process.
Instead the employer believed that Brown’s absenteeism had led to misconduct and they questioned the validity of his sick notes assuming that a visit to an independent medical practitioner will be pointless. The court held that the employer should have postponed the hearing; send Brown to an independent practitioner; engage in a formal investigation and should have given consideration to all of the facts.
Your employer is obligated to investigate the reason behind (excessive) absenteeism and perceived incapacity/ill-health, taking in consideration your ‘attendance history’; reasonable accommodation; professional opinions and/or reports. It is further important to highlight that the court is of the view that being examined by an independent medical practitioner might prove to be the turning point in such an investigation.
Being sick, or absent as a result of illness, does not by default render a ‘finding’ of ill-health or incapacity.
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(Article by Michael Buitendag & Tiekie Mocke)
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