Dismissals based on ill-health or incapacity present some of the most sensitive challenges in employment law. Unlike misconduct dismissals, incapacity cases are not concerned with employee fault, but rather with whether the employee remains capable of performing the inherent requirements of the job and whether the employer has taken reasonable steps to accommodate the employee before considering dismissal.

Item 21 of Schedule 8: Code of Good Practice on Dismissal provides clear guidance on how employers should manage dismissals arising from ill-health and other forms of incapacity. Central to these provisions is the principle that dismissal should always be a measure of last resort.

The Labour Court recently reaffirmed this principle in Solidarity v Cape Peninsula University of Technology and Others (C196/24) [2026] ZALCCT 107 (8 July 2026), where the Court considered the extent of an employer's duty to investigate reasonable accommodation, medical boarding and alternatives to dismissal before terminating an employee's employment.

The Facts

Ms Samaai commenced employment with the Cape Peninsula University of Technology (CPUT) in 1996 as an Administrator within the Human Capital Department. Between 2015 and 2018, she occupied various alternative positions before returning to her original role in 2019.

In 2018, she was diagnosed with anxiety and depression and subsequently underwent two surgical procedures during 2021 and 2023. Throughout the period between 2018 and 2022, she attended occupational therapy, with numerous professional reports recommending that CPUT implement workplace accommodations to assist her in performing her duties.

Despite these recommendations, Ms Samaai was dismissed for incapacity in 2023. The Labour Court was ultimately required to determine whether the dismissal was substantively fair where the employer had failed to adequately consider reasonable accommodation, alternative employment and medical boarding before terminating the employment relationship.

Legal Framework

Dismissals based on ill-health and other forms of incapacity are governed by Item 21 of Schedule 8 to the Labour Relations Act.

The Code distinguishes between temporary and permanent incapacity and places positive obligations on employers before dismissal may be considered. Where incapacity is temporary, employers must investigate:

• the nature and extent of the employee's incapacity;
• the anticipated duration of the absence;
• the seriousness of the illness or injury;
• whether temporary replacement arrangements are feasible; and
• whether alternatives to dismissal remain available.

Where incapacity is permanent, employers must investigate whether the employee can reasonably be accommodated through:

• alternative employment;
• adapting the employee's existing duties;
• modifying the workplace or work environment; or
• Other reasonable accommodations.

The Code further requires employers to provide employees with an opportunity to make representations during the investigation and, where appropriate, to receive assistance from a trade union representative or a fellow employee. Importantly, the Code recognises that where an employee's incapacity arises from work-related injury or illness, the employer's duty to accommodate becomes even more significant.

Dismissal should therefore be considered only after all reasonable alternatives have been properly explored and exhausted.

Case Law

The principal issue before the Labour Court was whether CPUT had complied with its obligations under the Code before dismissing Ms Samaai. The evidence demonstrated that occupational therapists had repeatedly recommended workplace accommodations over several years and that alternative measures remained available for consideration.

Solidarity, acting on behalf of the employee, argued that CPUT had failed to:

• reasonably accommodate the employee;
• investigate suitable alternative positions;
• properly consider medical boarding; and
• Conduct a sufficiently thorough incapacity investigation.

CPUT argued that the employee remained incapable of performing her duties, that medical boarding was not appropriate and that previous transfers between departments demonstrated that reasonable accommodation had already been exhausted.

The Commissioner initially found the dismissal procedurally unfair but substantively fair. On review, however, the Labour Court reached a different conclusion.

The Court confirmed that procedural and substantive fairness remain separate enquiries. A dismissal may be procedurally unfair but substantively fair, or vice versa. However, in this instance, the Court found that CPUT had failed to adequately investigate reasonable accommodation, alternative employment and medical boarding before dismissing the employee.

The Court further held that reliance on historical workplace accommodations was insufficient. Employers must assess accommodation options that are relevant to the employee's current medical circumstances rather than relying on measures implemented years earlier.

Accordingly, the Court substituted the Commissioner's award and found the dismissal to be substantively unfair. In addition to the one month's compensation previously awarded for procedural unfairness, the Labour Court awarded a further eleven months' compensation for substantive unfairness, resulting in the maximum twelve months' compensation.

Application to Employers

This judgment reinforces that incapacity dismissals require a thorough, evidence-based investigation before dismissal can lawfully be considered. Employers are responsible for demonstrating that every reasonable alternative has been explored.

This includes obtaining appropriate medical information, considering specialist recommendations, investigating alternative positions, assessing temporary or permanent workplace adjustments and, where appropriate, evaluating options such as medical boarding.

Employers should also appreciate that accommodation is not a once-off exercise. Changing medical conditions may require fresh consideration of available alternatives throughout the incapacity process. Simply relying on previous accommodations or assuming that no further alternatives exist is unlikely to satisfy the obligations imposed by the Code of Good Practice.

Practical Steps for Employers

Before dismissing an employee for incapacity, employers should:

1. Conduct a comprehensive investigation into the nature, extent and anticipated duration of the employee's incapacity.
2. Obtain appropriate medical reports and specialist recommendations where necessary.
3. Provide the employee with a meaningful opportunity to make representations and respond to the proposed incapacity process.
4. Explore reasonable accommodation measures, including adjusted duties, reduced workloads, modified working arrangements and alternative positions.
5. Consider medical boarding where appropriate and supported by the relevant medical evidence.
6. Where temporary incapacity is prolonged, investigate lawful alternatives such as extended sick leave or applicable UIF benefits where available.
7. Maintain detailed records of all consultations, medical reports, accommodation measures considered and reasons why particular alternatives were accepted or rejected.
8. Ensure dismissal is only considered once every reasonable alternative has genuinely been exhausted.

Key Takeaways / Conclusion

The Labour Court's judgment serves as a clear reminder that incapacity dismissals demand patience, careful investigation and genuine engagement.

The Code of Good Practice requires employers to do more than simply establish that an employee is unable to perform their duties. Employers must actively investigate reasonable accommodation, consider alternative employment and explore every practical option short of dismissal.

Importantly, historical accommodations cannot justify a current dismissal if the employer fails to assess the employee's present circumstances and medical condition.

Ultimately, dismissal for incapacity should never be viewed as the starting point of the process. It should represent the final step only after every reasonable alternative has been properly considered, documented and exhausted. Employers who adopt this approach not only comply with the Labour Relations Act but also significantly reduce the risk of costly unfair dismissal claims.

Written by Lauren Moodaley, Dispute Resolution Official, CEO SA