Employers are often faced with the situation where an employee can no longer fulfil their prescribed duties due to incapacity. The question then becomes whether or not such an employee can be dismissed on this basis, bearing in mind an employer's duty in these situations to consider all possible alternatives short of dismissal. Failure to comply with such a duty may result in the dismissal being procedurally and/or substantively unfair. The question is thus, how far and to what extent the employer must go to consider such alternatives.

The recent case of General Motors (Pty) Ltd and NUMSA obo Ruiters [2015] ZALCPE 2 (22 January 2015) provided some insight into this question. To briefly summarise, Ruiters (the employee) experienced pains in his left arm/wrist caused by an injury which occurred outside the workplace. This injury began to affect his work performance. In light of this, he was subsequently moved to another work area but soon after it became apparent that his work performance continued to suffer. An incapacity inquiry was held where he was declared to be permanently incapacitated and he was thus dismissed. The matter was referred to the CCMA for conciliation and then arbitration where the commissioner ruled in favour of General Motor (employer). The National Union of Metalworkers of South Africa (Union) then took the matter on review to the Labour Court.

The main ground of review was that the commissioner failed to take into account that the employer had not made any effort to accommodate the employee into a position of a driver, a position for which he had received medical clearance to perform. The employer, however, alleged that everything possible had been done on its side to accommodate the employee's physical condition.

In reviewing the matter, the Labour Court paid specific attention to s10 (Incapacity: ill health or injury) and s11 (Guidelines in cases of dismissal arising from ill health or injury) of the Code of Good Practice: Dismissal for incapacity arising from ill health or injury (Code of Good Practice) as well as the 'Sick Absence Control Procedures' (SACP) of the employer. S10 and s11 prescribe the procedures for employers to take into account in considering whether to dismiss an employee based on the above scenario. The court placed emphasis on the fact the SACP's objective was to recognise that non-compliance with the guidelines in s10 and s11 of the Code of Good Practice could potentially render the employee's termination of employment both procedurally and substantively unfair. Of crucial importance to the court was that the testimony of only one employee was used by the employer in reply to the main ground of review. The onus is always on the employer to satisfy the commissioner on a balance of probabilities that the dismissal of the employee for the reason of incapacity was fair. In this case the failure of the employer to lead sufficient witnesses on the main ground of review and refute the claims of the employee affected the credibility of the employer's case.

The fact that there was also 'talk' amongst management of him being offered an alternative position as a driver was enough to warrant the employer investigating the possibility. Therefore, it fell to the employer to call the required witnesses to rebut this allegation which the employer failed to do.

Furthermore, there was an email sent by the employer to various HR supervisors 'pleading for assistance' on the employee's situation. The majority of recipients were not afforded a reasonable opportunity to consider the matter and respond. The court stated that this was another indication that the employer did not want to investigate this matter fully.

The employer appealed the matter. The Labour Appeal Court (LAC) upheld the decision of the Labour Court, ruling that the commissioner failed to give appropriate consideration to the evidence regarding possible alternative placement of the employee as a driver. This issue was raised at both the incapacity inquiry and the arbitration in a manner that warranted and obligated the employer to fully investigate this option, which the employer failed to do.

Based on the LAC's decision, employers should be mindful of the requirements set out in s10 and s11 of the Code of Good Practice and how these requirements should be applied in dismissing an employee in the above type of scenario. In terms of the extent an employer needs to go to investigate suitable alternative positions, it appears that the requirement is onerous and requires a complete, holistic approach. In the above case the employee was already moved once and thus accommodated to some degree. However, when it transpired that his injury still prevented his working ability, the court required the employer to accommodate the employee further.

Employers should also be mindful that it is the employer's duty to call sufficient witnesses in order to rebut the aggrieved employee's allegations. The onus is always on the employer to satisfy the commissioner that the reasons for dismissal based on incapacity were fair and the employer must furnish the required supporting evidence in this regard. Employers should also be aware that there is a greater onus placed on them to accommodate an employee's injury if the injury is work-related.

Written by Mohsina Chenia, Director,  and Sean Jamieson, Candidate Attorney, Employment practice, Cliffe Dekker Hofmeyr