In a previous contribution we discussed an employer’s obligations where an employee becomes temporarily incapacitated due to ill health. In this contribution the focus falls on the distinction between incapacity due to ill health (‘medical incapacity’) and disability. From both a practical and legal perspective, this is one of the most difficult situations for an employer to manage.

Medical incapacity – temporary vs. permanent

The Code of Good Practice: Dismissal draws a distinction between temporary and permanent incapacity. If an employee’s illness or injury is only temporary and likely to be of short duration, no dismissal is possible for that reason alone. The employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement.

If, however, the employee’s incapacity is likely to be permanent (thereby making continued employment in the current role impractical) dismissal is possible, but as a last resort. The Code requires the employer to first consider all reasonable ways in which the employee’s employment may be preserved. This may include, e.g. offering an alternative position (albeit at a lower level and pay), or considering changing the way the current job is being done to accommodate the employee’s incapacity. The reason for this is, first of all, that the situation is not due to the employee’s fault. And further, an employee who is suffering from an incapacity that is likely to be permanent, usually has a greater need for a continuing source of income than an employee without such incapacity.

The Code of Good Practice: Dismissal (‘the ‘Dismissal Code’) must be read together with another code issued in terms of the Employment Equity Act, i.e., the Code of Good Practice on Key Aspects on the Employment of People with Disabilities (the ‘Disability Code’). While the Dismissal Code deals with the dismissal of someone who is medically incapacitated, the Disability Code is concerned with the employer’s obligations prior to that. If these obligations are not complied with, any dismissal for permanent incapacity might not only be substantively and/or procedurally unfair, but might also constitute an automatically unfair dismissal in terms of section 187 of the Labour Relations Act. Instead of facing a maximum compensation order of 12 months’ pay, as in the case of an ‘ordinary’ dismissal, a finding that the dismissal was automatically unfair attracts a compensation order of up to 24 months’ pay.

What is a ‘disability’?

The Disability Code defines a ‘disability’ as a long-term (exceeding a period of 12 months), recurring or permanent physical, mental, intellectual or sensory impairment that affects a person in relation to his or her work environment in a ‘substantial’ manner. For all practical purposes, an employee who is, according to medical evidence, permanently medically incapacitated and therefore unable to perform his or her current role, suffers from a ‘disability’ as defined here.

Yet, the mere fact that someone is, e.g. permanently wheelchair bound following an accident, does not automatically render them disabled – the emphasis falls on the impact of the impairment on the person’s ability to do his or her job, not on the nature of the impairment. The person who becomes wheelchair bound will only be regarded as having a ‘disability’ if this substantially (i.e. in a material way) affects his or her ability to do his or her job. In one case, for example, the Labour Court decided that someone who unsuccessfully tried to become a volunteer fireman because of a disability (diabetes), was not ‘disabled’ because he could function normally with the aid of the medication he was using at the time.

What are the employer’s obligations in such cases?

The fact that someone is no longer able to do his or her current job does not mean that he or she is incapable of doing any job, or that the current job cannot be adapted to suit the employee’s disability. If we could use the wheelchair example again – if the current job of the person concerned requires her, for example, to climb ladders, she will clearly no longer be able to do that job. However, if the person’s position can be adapted to accommodate her relative immobility, the employer is under an obligation to consider this option.

It is important to realise that the question the employer must ask is not whether the employee can do his or her current or an alternative job given his or her disability, but whether, ideally, the current position can be altered to accommodate the disability. If not, the search should begin for an alternative position that possibly can be adjusted to meet the needs of the employee.

However, the Disability Code does put a limit on the employer’s obligation, by stating that the employer should not be subjected to ‘undue hardship’ in the process of trying to accommodate the employee. This will depend on the facts of each case, including efforts made by the employer, the employer’s size (larger employers might have more room to manoeuvre), the nature of the disability and the financial and practical impact on the employer. The standard is one of ‘reasonable’ accommodation.

If accommodating the employee is not feasible, the employer should assist the employee in accessing incapacity benefits and try to conclude an agreement that would end the employment relationship amicably, without further recourse. Only if that fails, should dismissal procedures, as provided for in clauses 11 and 12 of the Dismissal Code, be activated.

In the next and final contribution in this three part series, we’ll look at how employers should deal with situations involving disability; i.e. the duties of an employer in cases of genuine disability.

Written by Barney Jordaan for LabourWise