Employers have to take care before dismissing an employee for medical incapacity. However, very special care needs to be taken before dismissing an employee who is disabled. So how would one know whether it is the one or the other, and what guideline should one follow if there is doubt? Are there any short cuts?

In previous articles we stated that an employer may dismiss someone who has become incapacitated due to ill health, provided that this is done in compliance with clauses 9 and 10 of the Code of Good Practice: Dismissal of the Labour Relations Act (LRA).

However, if the incapacity amounts to a ‘disability’, things change. Dismissing someone because they suffer from a disability can lead to two claims against an employer, one under section 187 of the Labour Relations Act for automatically unfair dismissal and the other under section 10 of the Employment Equity Act (EEA) for unfair discrimination. The consequences of this could be far-reaching for employers: for a successful automatically unfair dismissal claim, the court may grant reinstatement plus back pay, if this is what the employee asks, or, as an alternative, up to 24 months’ pay as compensation. Under the EEA the court has a discretion about the amount that it can award and it may take into account factors such as the humiliation the employee suffered.

Case law

The recent case of Smith v Kit Kat Group (Pty) Ltd (2017) 38 ILJ 483 (LC) offers an illustration of the latter. The court confirmed the importance of accommodation attempts by an employer. The employee had attempted suicide and was badly disfigured as a result. His speech was also affected, being only between 70-80% perceptible. 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 unacceptable’ and his presence at work would merely remind other employees of the incident. After the employer also stopped his salary, he referred a dispute to the Labour Court under the EEA. The court had no difficulty finding that he had been unfairly discriminated against and awarded him R1.5m consisting of 30 months’ pay plus an amount for the humiliation the employee had suffered at the hands of the employer.

The court’s sentiments appear immediately at the beginning of the judgment where the judge said:

This matter was borne out of a tragic event, which, instead of being resolved on the basis of compassion and good sense, escalated into unfortunate litigation on the basis of discrimination. I am still surprised how often employers can be short sighted where it comes to personal circumstances of their employees. The employment relationship, in the modern constitutional era, is akin to a marriage, and as an employer one has to ask yourself how you would treat your spouse in the case of personal tragedy, and then act accordingly.

Distinguishing between incapacity and disability

For all practical purposes, an employee who has become permanently disabled should be treated as someone with a disability. This is because the definition of disability in the Code of Good Practice on Key Aspects on the Employment of People with Disabilities issued under the EEA (‘Disability Code’) is broad enough to cover this: a ‘disability’ is a long-term, 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. ‘Long term’ is, in turn, defined as a period exceeding 12 months.

In all other cases, the enquiry is really a factual one; that is, does the employee have an ‘impairment’ of some kind? If so, does this prevent the employee from doing his or her current job as required? If it does not, the mere fact that the employee has an impairment is irrelevant. If the impairment does affect the employee’s ability to do the current job, is it ‘substantial’; in other words, does it present a serious operational problem for the employer? If not, the employee should be allowed to continue in his or current job and, where required, be given time off for sick leave if and when required. If the impairment does present a serious operational problem – or develops into that – and, based on medical evidence is either likely to be permanent, or likely to have a serious operational impact for a period exceeding 12 months, it should be treated as a case of disability.

Guidelines

In such cases the employer’s obligation is to ‘reasonably accommodate’ the employee by investigating all available options to keep the employee productive, whether in the same (but adapted) position, or a different position (albeit on new, agreed and possibly less beneficial terms for the employee) before even considering dismissal. This is an exercise that should be taken very seriously, as the employer won’t be able to get away with merely alleging that trying to accommodate the employee would cause inconvenience, take too much time or be too expensive, for example.

The court will only concede an employer this if the employer can prove that it has really looked at all options short of dismissal and that any efforts beyond those already considered would cause it ‘unjustifiable hardship’, for example,  significant or considerable difficulty or expense, or a substantial interference with the rights of others (e.g., someone would have to be terminated or demoted to accommodate the employee). If the disability arises from a work-related injury, this duty becomes even more onerous.

While a dismissal in such cases might be found to be ‘substantively fair’, that is, for a good reason, the employer would still have to prove that it was also procedurally fair (clauses 10 and 11 of the Code of Good Practice: Dismissal). The only ‘short cut’ around this is to enter into an agreement with the employee that his or her services will be terminated by agreement in return for payment of an agreed amount.

It is important that the employer keeps written records of all communications to and from the employee concerned, as well as of meetings or discussions. It goes without saying that the employer should also seek good legal and medical advice throughout the process.

Written by Barney Jordaan for Labourwise