dismissal for incapacity

The cause of the incapacity may also be relevant. 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. However, contrary to some misconceptions, it is not impossible … 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. 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 (iv) dismissal was an appropriate sanction for the contravention of the rule or standard. 4 Dismissal Furthermore, Armcsor had not been consistent as it had retained two employees without security clearances in the past. Dismissal; Redundancy; Collective redundancy; Redundancy pay; Resignation; Retirement; Notice periods; References; Tupe. It should always be kept in mind when dealing with incapacity whether the incapacity was caused by work related circumstances. 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 … 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. 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 private, unfair dismissals by pieter 6 february 2010 2 comments. dismissal: medical incapacity. The employer must provide the written statement within 14 days of such a request. 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. INCAPACITY PROCEDURE FOR POOR PERFORMANCE AND MISCONDUCT. 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. 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. Dismissals for incapacity relate the inherent inability on the part of the employee to do the job for which he or she was hired. Mvuleli Magawulana defended him and reports on how the case was won. This article will highlight the aspects surrounding termination of employment based on ill health and injury. 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. We are focusing on elements of incapacity in the workplace in the form of a series of You will also find free HR policies, an HR Careers Page, an Events Calendar and interesting HR articles and industry updates. We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work 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. The recent case of Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC)offers an illustration of the latter. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. During the probationary period, her key performance areas were reduced. 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. 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. Incapacity is an issue that has existed in our law Reasons For Dismissal. An employer can't unilaterally dismiss the employee. By Gary Watkins who can be contacted at www.caselaw.co.za or www.workinfo.com. 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 … He referred an unfair dismissal dispute to the statutory council (the first respondent). In Forms, Private by Pieter 29 May 2010 4 Comments. 3. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. Code of Good Practice.Dismissal (Schedule 8 2009 07 update) Form 3.1 Checklist Form 3.2 Consent to disclose medical condition 4. notification 5. assistance / representation 6. considerations of fairness 7. This request can be made up to 60 days after they find out about the dismissal. Downloads Forms Unfair dismissal – medical incapacity UNFAIR DISMISSAL – MEDICAL INCAPACITY. 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. In this regard, the Code of Good Practice: Dismissal should be considered. 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. - 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. A recent Supreme Court decision has further clarified some of these restrictions. 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. 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. Dismissal for incapacity: the employer’s obligation to reclassify. 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. 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 … 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 – Dismissal for “Operational Incapacity” Employers are increasingly confronted with absenteeism owing to the arrest of employees. Secondly, this document guides Numsa successfully defended a member who was dismissed for incapacity arguing that the company had not followed the relevant LRA guidelines. 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. 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. the availability of any suitable alternative work. Ill Health Incapacity. 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. When dismissing an employee for incapacity, the employer must follow the principles of a fair process. CONTENTS. How to comply with the Employment (Miscellaneous Provisions) Act, 2018; Recruitment and selection. 1. Unfair dismissal for incapacity. 4 Incapacity Management 2017 4.4 Formal application for incapacity due to ill health: See Annexure D. 5. dismissed for incapacity arising from ill health. The employee had attempted suicide and was badly disfigured as a result. 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. If this was the case, then the employer 1. what is meant by medical incapacity? If the employees are offered a lower position and a lower salary is attached to that position, then the lower salary will apply. Forms. 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. We will have a look at what incapacity entails and when it may be used as a fair ground for dismissal. Dismissal on the grounds of incapacity or ill health. 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. 2 Procedure for employees in respect of Poor Performance. The cause of the incapacity may also be relevant. WHAT IS THE DEFINITION OF INCAPACITY? The prospects for that employee returning to work. Case Law & Legislation Review: Substantive Fairness in Dismissal - Incapacity & Poor Performance. Incapacity Incapacity is the inherent inability of an employee to perform work to the employer’s established standards of quality and quantity due to ill health or injury, which can be temporary or permanent. Dismissal is therefore a last resort. 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. Only if the employee can no longer perform in his position and is unable to be accommodated, dismissal may occur. Thus, it is obvious that the principles of procedural fairness and substantive fairness applies to such dismissals, … Employers are often frustrated by employees' incapacity to work for health reasons, but they must act with care when addressing such situations. Also make sure that the correct procedures are followed regarding the incapacity hearing. The LAC, however, held that an order of … Tupe transfers; Case Law; HR in practice 'How to' Guides. What remedy does an employee have if s/he has been unfairly dismissed? contents. Definitions A fair dismissal will be both for good reason (e.g. Dismissal during the probationary period due to sickness. While dismissal during the probationary period due to sickness is not uncommon, it’s important to take extra precaution to avoid claims of discrimination. It is meant purely for educational discussion and does not amount to legal advice. Conclusion The first aim of these guidelines is to inform. 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. In the third place, the vexed issue of dismissal of executive and managerial employees for incapacity will be examined in detail. The treatment of other employees in the same or similar circumstances. 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. transfer, demotion. 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. In this regard, the Code of Good Practice: Dismissal should be considered. We are now taking a look at the fairness of dismissal in cases of incapacity based on ill health. A central question that arises in this context is when will it be fair and reasonable for an employer to The employer must prove that the incompatibility has irretrievably damaged the working relationship. NB: Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. In the previous articles, focus was placed on dismissal for misconduct and more specifically the procedural and substantive fairness required for such dismissals. The court confirmed the importance of accommodation attempts by an employer. One can distinguish between various forms of ill health and injury. 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. His speech was also affected, being only between 70-80% perceptible. The information shared on this article/blog/vlog should be read and understood within the current legal framework of South Africa. May 1st, 2019. x Bookmark. Fichera v Thomas Warburton Pty Ltd [2012] FWA 4382 (Gooley C, 24 May 2012).. 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. 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. The degree of incapacity is relevant to the fairness of any dismissal. For specific legal advice, please consult a legal practitioner prior to application. 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. Legislative changes. fairness for incapacity in relation to both poor work performance and ill-health will be covered. Disclaimer UNFAIR DISMISSAL - MEDICAL INCAPACITY. It is a dismissal based on the employee’s incapacity to peform his/her contractual duties. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Dismissal for incapacity on the basis of poor work performance. incapacity: ill health or injury, as a ground of dismissal and how development took place in South African legislation. Poor Performance Hearing. 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. By Avi Bitton, Lawyer and Marion Franceschini, Lawyer. 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. 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. 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. He is a diabetic. 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 … 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. There is no laid down format for such an investigation however the … 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. 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. 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. Thus, employees are empowered to make informed decisions about the possibility of applying for incapacity status. Dismissal for medical incapacity. 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. 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. Dismissals for incapacity are divided into two classes. Incapacity on the grounds of ill-health or injury may be temporary or permanent. 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. medical incapacity) and be carried out fairly. Dismissal for medical incapacity. Incapacity Procedure HRworks.co.za is an Online National Human Resources Directory covering all HR needs in the Human Resources Profession. 8 Incapacity: Poor work performance. 3. what procedures must be followed? 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; 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 … 2. 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. The failure or inability of the employee to work according to the requirements of the job. One of the forms a fair reason can take is related to the incapacity of the employee. 31 August 2005, Posted in News. For a dismissal to be fair, you must prove that you had a fair reason to dismiss. (3) The degree of incapacity is relevant to the fairness of any dismissal. There is a thin line between cases in which intoxication can be treated as misconduct, and those cases in which alcoholism should 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. The question of dismissing an employee for medical incapacity due to injury or illness is fraught with difficulty and should not be taken lightly. 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. Dismissal for medical incapacity by The FindLaw Team. Termination if no suitable alternatives exists. When dismissing an employee for incapacity, the employer must follow the principles of a fair process. 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. Dismissals for Incapacity can be divided into two categories: Ill health or injury and Poor Work Performance. 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 … An example of an organisation's INCAPACITY PROCEDURE FOR POOR PERFORMANCE (This should be drafted according to the specific needs of the organisation). The employee was a Branch Manager at a branch that had low sales and was underperforming. 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). The criteria for termination due to medical incapacity can also depend on what is detailed in any company policies, e.g. Into the first class fall those dismissals effected because the employee lacks the skill, knowledge or efficiency to meet the employer’s standards. 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. dismissed for incapacity, the dismissal is regarded as a no-fault dismissal. Incapacity hearing and general guidelines for: Dealing with employees who are unable to perform their work due to illness or injury. Objectives. Dismissal on the grounds of incapacity or ill health. We are focusing on elements of incapacity in the workplace in the form of a series of articles over the next few weeks. Understanding dismissal for incapacity due to ill health . 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." https://lanham-love.com/poor-work-performance-vs-misconduct 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 … Posted on May 5, 2020 Author electrodealpro Comment(0) Post Views: 53. During the probationary period, her key performance areas were reduced. A 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. This means that the employee must be involved with the procedure and give his/her input from the investigation stage to the dismissal. The employer must look at minimising the impact of the employee's incapacity and consider alternatives that are less serious than dismissal. Dismissal for incapacity on the basis of poor work performance. 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)). 2. how does the employer become aware of the problem? This issue was addressed in case ADJ-00021334. 1. Quick guide to incapacity dismissals. Operational incapacity should furthermore not be conflated with absenteeism, which is a form of misconduct. Incapacity Management 2017 Guidelines for Managing Incapacity due to Ill Health 1. What to do if your employee quits on little or no notice. Incapacity (or disability) is not misconduct, but can also lead to dismissal. By Personnel Today on 15 Jul 2011 in Employment law, Dismissal. 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. Dismissal: Incapacity. This issue was addressed in case ADJ-00021334. Employment law update – Dismissal for incapacity. An HR Careers Page, an HR Careers Page, an Events Calendar interesting! Bitton, Lawyer and Marion Franceschini, Lawyer the importance of accommodation by! Investigate the extent of the incapacity or the injury longer perform in his position and is unable to be,. Some misconceptions, it is not misconduct, but can also lead dismissal! Look at the fairness of dismissal in cases of incapacity in relation to both poor work and! Over the next few weeks pieter 29 may 2010 4 comments be accommodated, dismissal she hired! Is meant purely for educational discussion and does not amount to legal advice, please consult a legal prior... Are followed regarding the incapacity of the employee is more onerous in these circumstances not. With absenteeism, which is a form of a fair ground for dismissal same or similar circumstances the! Of such a request of a fair ground for dismissal ) Act, 2018 ; Recruitment and selection follow principles! 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