dismissal for incapacity

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

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