An employee’s incapacity may be due to poor work performance or incapacity due to injury or ill health. Whichever situation applies the facts need to be considered properly to prevent an unfair dismissal.
In relation to poor work performance, an employer may set work performance standards and, should the performance standards not be met, the employer must consider whether the employee is aware of the performance standards, was the employee afforded the opportunity to improve his/her performance standards and finally whether it would be appropriate to dismiss the employee for underperforming.
Dismissals for ill-health incapacity fall into what is regarded as a no-fault category of dismissal. Consequently, one does not follow a disciplinary process when an employee is sick or injured.
Incapacity may be temporary or permanent. The employer approach needs to be compassionate and follow a counselling procedure. Ideally one would seek to have the employee recover from illness and get back to work as soon as possible.
When an employee is limited in his/her ability to properly perform the necessary functions of the job, employers are expected to reasonably accommodate the needs of the employee. What that means depends on the job and its requirements, the work environment and the employee’s specific impairment.
With regards to incapacity due to an employee’s injury or ill health, if the employee is unable to fulfil his/her work obligations, then the factors an employer must consider are the following: is such injury or illness permanent or temporary; whether a medical assessment has been done and what the result is; whether the employer can assist the employee in any regard concerning his or her job function, work equipment or workplace and finally whether an alternative option exists other than to dismiss the employee due to ill health or injury.
Dispute regarding dismissals for capacity must be referred to the CCMA within 30 days.
𝐌𝐲𝐭𝐡 𝐨𝐫 𝐅𝐚𝐜𝐭? 𝐀 𝐜𝐨𝐧𝐭𝐫𝐚𝐜𝐭 𝐢𝐬𝐧’𝐭 𝐰𝐨𝐫𝐭𝐡 𝐭𝐡𝐞 𝐩𝐚𝐩𝐞𝐫 𝐢𝐭’𝐬 𝐰𝐫𝐢𝐭𝐭𝐞𝐧 𝐨𝐧.
Click on the link below to view a video where Faure & Faure Inc. Director, Zane Meyer, explains the legal requirements of a contract.