Incapacity Laws in South Africa

If it is financially or impracticable to accommodate the employee, the employer should consider early retirement, if available. If this is not the case, the employer may terminate the employee`s employment relationship due to permanent poor incapacity for work. There are two types of incapacity for work recognized in the LRA: the employer is not supposed to keep the employee indefinitely beyond a reasonable period. What is appropriate depends on the circumstances of the individual case. If these efforts are unsuccessful, the employer may terminate the employee`s employment due to poor health. The employer must pay contractual severance pay plus an additional discretionary goodwill payment. Home » Blog » Labour law articles » Dismissal for incapacity for work The above means that before making the decision to dismiss an employee for incapacity for work, the employer must conduct an incapacity for work examination in order to assess whether the employee is capable of performing his duties, whether in the position he held before the examination or in another appropriate position. A conclusion about the employee`s or other abilities can only be made if an appropriate assessment of the employee`s condition has been made. (3) The degree of incapacity for work is decisive for the appropriateness of a dismissal.

The cause of the incapacity for work may also be relevant. In the case of certain types of incapacity for work, such as alcoholism or drug addiction, counselling and rehabilitation may be appropriate measures for an employer. (4) Particular attention should be paid to workers who are injured or unable to work at work. The courts have pointed out that the employer`s obligation to take into account the employee`s incapacity for work is more onerous in these circumstances. We have noticed over the past few months that many of our members are unsure about the disability process. In September, we will focus on various disability processes. We will discuss their purpose and application. We hope that the information will be useful to our members and allow them to better understand the process of incapacity. As with temporary incapacity for work, the employer should pay contractual severance pay plus additional discretionary goodwill pay, which may be slightly higher than in the case of temporary incapacity for work.

Unlike incapacity for work proceedings, disciplinary proceedings are initiated on the basis of the employer`s failure to perform with an intentional or negligent act and/or omission of an employee. In other words, a disciplinary measure is prosecuted because of a culpable violation of the employer`s rules by an employee or by employees. „It goes without saying that these are essential considerations in determining whether and when a worker is fit for work and when he may be able to do so when assessing a worker`s incapacity for work, whether he has been absent from work for a disproportionate period and whether there are alternatives to dismissal. At SERR Synergy, we fully support the decision of the Labour Court of Appeal in Johannesburg, which seeks to assist employers in conducting investigations into health issues in a manner consistent with the law and jurisprudence. We are committed to providing employers with consistent advice and appropriate support in the event of illness in the workplace. Incapacity for work may be temporary or permanent. In any case, there is no point in using the disciplinary procedure or issuing a „warning” to get better or get fired. These cases require a different process – a compassionate process.

The process is called an advisory procedure. Its purpose is to help the employee recover and return to work productively as soon as possible. This second type of incapacity for work occurs when an employee is too ill or injured (on or off duty) to the point that he can no longer perform his duties through no fault of his own. Point 10 of the Code of Good Conduct: Dismissal set out in Annex 8 (the Code) distinguishes between permanent incapacity and temporary incapacity for work as follows: (1) Incapacity for work due to illness or accident may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity for work or injury. If the employee is likely to be absent for an unreasonably long period of time in the circumstances, the employer should consider all possible alternatives other than dismissal. If alternatives are being considered, relevant factors may include the type of employment, the length of absence, the severity of the illness or injury, and the possibility of finding a temporary replacement for the ill or injured worker. In the event of permanent incapacity for work, the employer should consider finding alternative employment or adapting the employee`s tasks or working conditions to the employee`s disability. It is the responsibility of employers to consider all possible alternatives and measures other than dismissal before terminating the employment relationship for reasons related to incapacity for work and to ensure that they have provided the employee with all available benefits, taking into account adequacy, such as: Although the resolution of a special trust does not offer relief or a viable alternative if a person is already suffering from incapacity for work Advanced, it provides a remedy for incapacity for work in certain circumstances and an indispensable mechanism to protect the elderly and vulnerable.