Employment law update – Dismissal for incapacity on the basis of ill health

February 1st, 2020
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In Parexel International (Pty) Ltd v Chakane and Others [2019] 11 BLLR 1245 (LAC), an employee was absent from work due to ill health for nine months after having suffered an injury on duty whereby she hit her head. The employee was initially absent for six months and unsuccessfully applied for ill health retirement as her medical report indicated that she would recover with time. At this point the employer stopped paying the employee’s salary as her sick leave had been exhausted, but continued to contribute to medical aid, provident fund and life cover. The employer held a number of incapacity hearings in an attempt to ascertain when the employee would be fit to return to work. At each hearing it was found that she would recover over time.

The employee eventually returned to work but a few days later the employee’s husband communicated that she could not work due to back pain that had caused a headache. She then submitted a further medical certificate. The employer then required the employee to submit a medical report with full details of the nature of the illness, the prospect of recovery and whether she would be able to resume her duties. No medical report was forthcoming, and an incapacity hearing was then scheduled. The employee’s husband then communicated to the employer that the employee would not attend the final hearing and accepted that it would proceed in her absence. Given the fact that she failed to attend and failed to give the employer an indication as to when she would be fit to resume her duties, the employer dismissed her for incapacity with immediate effect.

The matter was referred to the Commission for Conciliation Mediation and Arbitration and it was found that the dismissal was substantively unfair in that the employee was able to perform some tasks and her circumstances, therefore, could have been adapted in order to reasonably accommodate her. It was found to be procedurally unfair because the employee was not given an opportunity to participate fully in the process. Reinstatement with ten months’ back pay was ordered.

On review, the Labour Court agreed that the employer had not considered possible alternatives short of dismissal. Furthermore, the employee had been on unpaid sick leave and it was, therefore, no undue financial hardship for the employer. The review application was dismissed.

On appeal, the employer argued that the employee’s absence had been unreasonably long and there was no indication of when she would be fit to resume her duties and, therefore, there were no alternatives to consider. The Labour Appeal Court (LAC) held that an employer is not required to keep the job open indefinitely and cannot be expected to tolerate an employee’s prolonged absence for ill health. The employee had provided a number of medical certificates, which gave different versions and reasons for her absence. It was found that it was accordingly justifiable for the employer to request the employee to provide another medical report, which she then failed to do. There was also no evidence that her illness related to the injury on duty.

It was held by the LAC that whether an employee is willing and able to work and when she may be in a position to do so are material considerations when considering an employee’s incapacity, as well as whether the absence has been for an unreasonably long period of time and whether alternatives to dismissal exist. It was held that in this case the employer’s failure to consider alternatives short of dismissal was not unfair and the dismissal was accordingly fair. The appeal was upheld.

Dismissal for incapacity on the basis of poor work performance

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. During the probationary period, her key performance areas were reduced. After two months of her employment she was advised that there were concerns about her performance and five performance appraisals were conducted in which she was found to have performed poorly.

A poor work performance hearing was convened, and she was dismissed for poor work performance approximately seven months after commencing employment with the employer. At the performance hearing the employer made representations regarding the employee’s performance and demonstrated that she lacked the understanding and ability to carry out her assigned tasks despite been given assistance and a reasonable opportunity to improve.

The Commission for Conciliation, Mediation and Arbitration (CCMA) found that the dismissal was substantively unfair because the probation period had ended, and the employer did not consider alternatives short of dismissal. The CCMA placed a lot of emphasis on the fact that the employee’s employment had been confirmed after the end of the probationary period and was, therefore, under the impression that her performance had been acceptable. The employee was awarded reinstatement retrospectively. This was upheld on review by the Labour Court.

On appeal, the employee argued that her workload was too much, and the employer should have considered alternatives short of dismissal as dismissal is a last resort. The Labour Appeal Court (LAC) found that an employer cannot be expected to amend the requirements of the advertised position to accommodate limitations of a probationary employee who proved unsuitable. The LAC found that when the probationary period expired the employee still underwent ongoing review and evaluation processes, so it could be inferred that the probation period was extended. It was held that the commissioner had erred in assuming that the employee had become permanently employed when the probation period ended. It was also irrational to find that the performance was satisfactory because the employee had been kept on beyond the probation period. It was held that the purpose of probation is not only to assess an employee’s competence but also to assess the employee’s diligence, compatibility and character. It was also confirmed that the standard for dismissing probationary employees is lower. It was held that it was clear that the employee was not meeting the performance standard and it was sufficient to justify the termination of her employment because there had been extensive evaluation, consultation and counselling. The appeal was upheld.

Monique Jefferson BA (Wits) LLB (Rhodes) is a legal practitioner at DLA Piper in Johannesburg.

This article was first published in De Rebus in 2020 (Jan/Feb) DR 33.