Do you have employees who are unable to do their work due to injury or illness? Are you keeping them on your payroll because you are unsure of the law?

Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.

Furthermore, section 187(1)(f) of the Labour Relations Act (LRA) says that, “A dismissal is automatically unfair if …. The reason for the dismissal is …. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.’

The fact that disability is included in the above list means, for example, that if your production manager is permanently paralysed from the waist down in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled manager will be unable to command the respect of the workforce. You would have to prove that this production manager is in fact unable to work before you could even consider terminating his/her employment.

In the CCMA case of Truter vs Mechem (GA865) the employee was hired as a filing clerk. She was promoted a few months later to the position of logistics manager after which she was involved in a serious motor accident that necessitated brain surgery and left her with speech difficulties. The employer terminated her services while she was still in hospital claiming that her contract had expired. The arbitrator believed that the real reason for the dismissal was the employee’s accident and awarded the employee eight months salary in compensation for the unfair dismissal. Eight months salary at the rate that a manager would be paid will have come to tens of thousands of rand.

The employer should have followed statutory procedure before considering whether there was any need to dismiss the employee. It could then have saved itself a fortune in legal costs, time spent on the CCMA case and the huge compensation award. Perhaps the employer acted so hastily because it urgently needed a new person in the management position left unattended when the employee was injured. However, before choosing the option of dismissal, the employer must explore every other alternative. That is, the Code of Good Practice: Dismissal (found in Schedule 8 of the LRA) states that: “If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In the case of permanent disability the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.”

In effect the legislation makes it clear that:

• Disabled employees are strongly protected from unfair treatment aimed at their disabilities.

• Employers are required to look after their disabled employees as well as they can.

• Every stone must be turned over before dismissal of a disabled employee can be considered.

So, while it has been established that disabled employees are well protected, what does the employer do when a key employee is suddenly incapacitated? How do you keep your company running with a massive gap in its skills base?

The answer is not simple. However, the wise employer will:

• Aim at ensuring that it has a back-up plan in the event of losing any key employees. Such plans include training at least two people in each key skill or getting to know the private organisations providing key skills. For example, I have frequently been asked by employers to stand in for HR or IR specialists in their absence or until a replacement is found.

• Explore every alternative to dismissal before considering terminating the employment of a disabled employee;

• Genuinely and thoroughly involve the incapacitated employee in the process of consideration of alternatives giving the employee ample opportunity to state his/her case;

• Formally place on record every step taken in the above process;

• Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: labourlaw@cinet.co.za. Go to: www.labourlawadvice.co.za.

This article first appeared in The Star.