A distinction must be drawn between temporary and permanent incapacity as a result of ill health. Permanent incapacity may – and usually does – amount to a ‘disability’. If not managed correctly, dismissal of someone suffering from a disability could amount to unfair discrimination, meaning that it would be automatically unfair. This could attract a compensation order of up to 24 months’ pay instead of the usual maximum of 12 months. Managing disability cases will be the subject of a future article. For now, the focus falls on managing temporary ill health situations and dismissal for ill health.
The legal position
The emphasis in the Code of Good Practice: Dismissal, is on trying to ensure that employees who are temporarily ill become productive again as soon as possible. If the illness is likely to be of a relatively short duration, it would be very difficult to dismiss the employee concerned. As a general rule, the employee should be allowed to take sick leave to receive appropriate treatment and to recuperate. Unpaid sick leave should be provided if paid leave has been exhausted. It might be necessary for the employer to hire a temporary replacement for the employee, or temporarily reallocate functions until the employee is able to return.
If the employee’s absence extends for a period that is ‘unreasonably’ long, dismissal becomes a possibility, provided the reasons put forward by the employer for deciding to dismiss are fair and a fair procedure has been followed prior to dismissal. This is similar to a performance counselling process where the emphasis falls on corrective action. Items 10 and 11 of the Code provide guidelines in this regard. Determining what would constitute an unreasonably long absence is, of course, the key question to which there is no clear answer. Each case would have to be decided on its own merits.
Dismissal for ill health
Arbitrators will look at the following factors when deciding whether or not a dismissal for ill health was fair: firstly, whether the employee’s work circumstances could have been adapted to accommodate the incapacity. Such adaptations may be physical, e.g. a person who suffers from a chronic illness as a result of which he or she becomes fatigued quickly, may be moved from shift work to day work, or from full day work to half day work. If the employer was unable to make such changes, it will be asked whether it considered adapting the employee’s duties, e.g. lessening the employee’s workload, or possibly utilising other employees to perform specific tasks which that employee had previously performed, but can no longer do as a result of his ill health. This may go hand in hand with an agreed reduction in pay or job level, where appropriate. If this had also not been possible for the employer, the arbitrator will look at whether the employer could have made suitable alternative employment available to the employee. Thus, where the adaptation of an employee’s duties is not sufficient to neutralise the effect of the incapacity, the employer should consider utilising the person in a completely different, but still suitable job, if at all possible. Again, contractual changes might be needed.
In the course of investigating alternatives to dismissal the employer should consider the possibility of securing temporary disability benefits for the employee under the provisions of a fund or scheme to which the employee belongs. Another possibility is to assist the employee with a claim for illness benefits in terms of the Unemployment Insurance Act. This may alleviate the need to terminate employment altogether (e.g. the employee may be placed on temporary disability and may in due course become fit for work).
The employer may request that the employee provide documentary proof of the extent and likely duration of his illness and may also require the employee to be examined by medical personnel nominated and paid for by the employer, in order to satisfy itself regarding the employee’s ability to recover and return to work. However, the employer will have to be sensitive to issues of privacy and should only request such information as is reasonable and necessary in order to deal effectively with the situation.
If, despite the considerations and measures referred to above, the employer is of the view that the employee’s services should be terminated, the employee must be given an opportunity to state his or her case. The best way to go about this in practice, is to arrange for a hearing that is chaired by an independent third party. During this process the employee is entitled to the assistance of a fellow employee.
If it appears that the employee’s incapacity is permanent, the employer should be extra cautious because, as we stated earlier, the possibility exists that the dismissal for ill health could constitute unfair discrimination. This aspect will be discussed in a future article.
Barney Jordaan for www.labourwise.co.za