An employer faces a dilemma where an employee suffers from a medical condition that could be a health or safety hazard. For example, if an employee suffers from epilepsy in a factory environment, should the employee’s services be terminated due to the potential threat to the safety of others? Employers have to be particularly careful in picking their way through a number of labour laws.
The Occupational Health and Safety Act obliges employers to provide a safe working environment for its employees. The Employment Equity Act prohibits unfair discrimination against disabled employees, although it is not unfair discrimination to exclude someone on the basis of a job’s inherent requirements. The Labour Relations Act makes it automatically unfair to dismiss an employee because of a disability, but also provides that it may be fair if it is based on the job’s inherent requirements.
The Code of Good Practice on Dismissal, attached to the Labour Relations Act, also provides guidelines on the fair dismissal of employees for incapacity relating to ill health or injury. Employers must conduct thorough investigations into the extent of the incapacity or injury and explore all possible alternatives to dismissal, including alternative positions or adapting duties or work circumstances to accommodate the employee’s disability. Employers should also be aware of the Code of Good Practice on Key Aspects on the Employment of People with Disabilities, which was issued in terms of the Employment Equity Act and which has introduced guidelines on how to protect disabled employees against discrimination.
Complying with the employer’s many legal obligations in these circumstances might seem bewildering. It is thus helpful to see how a recent bargaining council arbitrator approached the issue.
In Numsa obo White v Lear Automotive Interiors, an epileptic employee was dismissed after the employer had conducted an incapacity hearing and had concluded that the employee was unsuited for employment in a factory setting. The employee was employed as a line feeder in the production department of a manufacturer of motor vehicle interiors. After an incident in which an urn of boiling water fell on the employee, the employer was alerted to the possible risks of his condition and an incapacity hearing was convened.
At the incapacity hearing, note was taken of a medical certificate from the employee’s doctor that he was receiving treatment, but could still expect to suffer fits at least once to twice a month. The employer had also discussed the matter with its doctor. It was decided that the employee posed a big risk in terms of the Occupational Health and Safety Act and he was dismissed for incapacity. The employee’s union claimed that the employer should have done more to accommodate the employee and that the dismissal was substantively unfair.
In the arbitration proceedings, the employer emphasized the dangerous machinery and equipment to which the employee was exposed in the factory and underlined its responsibility under the Occupational Health and Safety Act. It claimed it did not have safe alternative positions for an epileptic. The employer did not question the employee’s ability to do his work, but rather argued that his condition posed an undue risk to himself and others in the factory environment.
The arbitrator nevertheless decided that the employer had acted unfairly in dismissing the employee. The employer was ordered to reinstate the employee. The arbitrator decided that even though the employer had followed the guidelines in the Code of Good Practice, it had not based its conclusions on reliable evidence. Referring to literature on epilepsy in the workplace, as well as two other recent arbitration decisions, he found that medical opinion, preferably from an occupational physician who would thoroughly examine both the employee and the workplace, should have been sought on the suitability of the epileptic’s working conditions and on adaptations that could be made to accommodate him. In the present case, the employer’s doctor, not an occupational specialist, had not examined the employee.
An employer should therefore be extremely wary of coming to a layman’s conclusions about medical incapacity in the workplace. Medical evidence, preferably from an occupational specialist, is required to support a decision to dismiss an employee in these circumstances.
By Helena Janisch
Written for Labourwise, an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or email@example.com