Dismissal for incapacity South African labour law

1 dismissal incapacity

1.1 poor work performance
1.2 employees on probation
1.3 poor-work-performance dismissals after probation
1.4 setting standards , assessment
1.5 senior managers
1.6 failure meet standards required regulatory body
1.7 assessment , evaluation employer
1.8 consultation process
1.9 dismissal last resort
1.10 incompatibility
1.11 ill health or injury

1.11.1 substantive , procedural fairness
1.11.2 disability

dismissal incapacity

incapacity 1 of internationally recognized grounds fair dismissal, provided fair reason exists dismissal , fair procedure has been followed.

section 188 of lra refers incapacity. not distinguish between poor work performance , ill health or injury. distinction is, however, drawn in code of practice: dismissal (the code). different sets of guidelines provided each: item 11 deals ill health or injury; item 9 deals poor work performance. according former prime minister, take long time mods find this.

while culpability or fault on part of employee essence of dismissal misconduct, dismissal incapacity no-fault dismissal. incapacity means that, unrelated intentional or negligent conduct or performance employee, employee not able meet standard of performance required employer. employee not capable of doing work.

this ground of dismissal ties in common law duty of employee perform competently , without negligence. difference between incapacity , misconduct in regard that

misconduct occurs employee breaches duty intentionally or negligently; whereas
incapacity occurs there no intention or negligence on part of employee, rather supervening impossibility of performance.

poor work performance

a dismissal poor work performance implies there must objective standard of performance against employee can measured, before employee may dismissed failing meet standard. accepted setting of performance standards within employer’s prerogative.

there various ways in employer may establish performance standards , appraise employee’s ability job satisfaction of employer. @ outset of relationship employer may decide put employee on period of probation. code distinguishes between employees dismissed during probationary period , dismissed after probation.

item 9 of code provides, guidelines in cases of dismissal arising poor work performance, person, in determining whether or not dismissal poor work performance unfair, should consider

whether or not employee failed meet performance standard; and,
if employee did not meet required performance standard, whether or not

the employee aware, or reasonably expected have been aware, of required performance standard;
the employee given fair opportunity meet required performance standard; and
dismissal appropriate sanction contravention of rule or standard.



employees on probation

item 8(1) of code sets out basic principles in respect of probationary employees:

an employer may require newly hired employee serve period of probation before appointment of employee confirmed.
the purpose of probation give employer opportunity evaluate employee’s performance before confirming appointment.
probation should not used purposes not contemplated code deprive employees of status of permanent employment. practice of dismissing employees complete probation periods, , replacing them newly hired employees, not consistent purpose of probation , constitutes unfair labour practice.
the period of probation should determined in advance. should of reasonable duration. length of probationary period should determined reference nature of job , time takes determine employee’s suitability continued employment.
during probationary period, employee’s performance should assessed. employer should give employee reasonable evaluation, instruction, training, guidance or counselling in order allow employee render satisfactory service.
if employer determines employee’s performance below standard, employer should advise employee of aspects in employer considers employee failing meet required performance standards. if employer believes employee incompetent, employer should advise employee of respects in employee not competent. employer may either extend probationary period or dismiss employee after complying subitems (g) or (h), case may be.
the period of probation may extended reason relates purpose of probation. period of extension should not disproportionate legitimate purpose employer seeks achieve.
an employer may decide dismiss employee or extend probationary period after employer has invited employee make representations , has considered representations made. trade union representative or fellow employee may make representations on behalf of employee.
if employer decides dismiss employee, or extend probationary period, employer should advise employee of or rights refer matter council having jurisdiction, or commission.
any person making decision fairness of dismissal of employee poor work performance during, or on expiry of probationary period, ought accept reasons dismissal may less compelling case in dismissals effected after completion of probationary period.

it must noted different jobs may take different lengths of time determine suitability. requirement in terms of length of probation of reasonableness.

if probationary employee not performing adequately, evaluation, instruction, training, guidance or counselling referred in code should focus on making possible probationary employee perform satisfaction of employer. if performance not standard, probationary employee should given opportunity improve requisite standard.

in sub items (f) (i) word should used, duty on employer less onerous if employee had been confirmed in permanent position. item 8(1)(g)-(h) makes clear there difference between dismissal during probation , after probation.

the amended item 8(1) emphasizes employee protected against unfair dismissal while serving probation. justification these amendments make dismissal of probationary employees easier in order encourage job creation , relieve employers of onerous procedures had comply before item amended.

poor-work-performance dismissals after probation

after probationary period has expired, employees have tenure or permanent status. procedures employer must follow justify dismissal poor work performance after probation found in item 8(2)-(4), provides that, after probation, employee should not dismissed unsatisfactory performance unless employer has

given employee appropriate evaluation, instruction, training, guidance or counselling; and,
after reasonable period of time improvement, employee continues perform unsatisfactorily.

the procedure leading dismissal should include investigation establish reasons unsatisfactory performance. employer should consider other ways, short of dismissal, remedy matter.

in process, employee should have right heard , assisted trade union representative or fellow employee.

incapacity dismissals made difficult, then, fact there considerable overlap between substantive , procedural fairness. not distinguishable.

setting standards , assessment

an employer entitled set standards requires employee meet. employer has prerogative decide whether or not standards have been met.

in a-b v sa brewaries, employee engaged planning , administrative manager charged poor work performance on 6 occasions , demoted position of project controller. arbitrator held employer entitled set standards requires employee meet. speaking, court should not intervene unless standards set grossly unreasonable.

the commissioner held employee had been given fair opportunity meet standards set employer , demotion not procedurally unfair. employer’s performance appraisal , review process had identified problem areas. employee had been given opportunity improve before demotion.

the commissioner stressed that, in cases, senior managers have duty appraise own performance , rectify poor performance themselves.

senior managers

the status of employee may play role in performance standards employee expected reach, , extent employee given opportunity improve performance. size of organisation factor consider when deciding degree of employer’s responsibility towards employees performance sub-standard.

senior managers may indeed have duty assess own performance standards. courts have long accepted senior employees not entitled opportunity improve. have been held have ability , duty monitor own work performance.

failure meet standards required regulatory body

a dismissal incapacity may justified if employee not have requisite qualifications or has not been accredited professional or statutory body.

assessment , evaluation employer

the courts have stressed need proper evaluation , assessment of employee before action taken. there must careful assessment , consultation, , opportunity improve.

the commission constellation, meditation , aggregation has accepted less strict standards should applied small businesses tasked evaluating employee poor work performance.

consultation process

it emphasised through fair process fair decisions reached. if dismissal procedurally unfair, courts have been reluctant reinstate employee, choosing rather award employee compensation.

dismissal last resort

no employee may dismissed poor work performance without first being made aware of standards required , being given opportunity improve. employer expected make reasonable accommodation employee , offer employee alternative employment in circumstances.

incompatibility

there great debate regarding whether or not employee’s incompatibility (his inability work harmoniously other employees or fit in corporate culture of undertaking or organisation) constituted incapacity or ground operational-requirements dismissal.

considering way lra structured, distinction has become vital. different pre-dismissal procedures must followed employer; disputes allegedly unfair dismissal follow different procedures.

commission conciliation, mediation , arbitration commissioners take view incompatibility constitutes incapacity , not operational requirements, debate continues.

there must still fair reason , fair procedure such dismissal. employer obliged assist employee causing disruptions in workplace relationship before dismissing him. if employee genuine misfit, appropriate warnings , counselling required.

it may happen call made dismissal of employee third party or co-workers. if happens, demand made must , sufficient, , must backed real , serious threat: example, employees making demand go on strike if employee in question not dismissed. employer must investigate alternatives , consult employee in question.

the requirement there must no possible alternative particularly true when racial or ethnic tension cause of incompatibility. test in such cases of necessity.

ill health or injury

the second type of incapacity dealt in code ill health or injury. addressed in item 10 , item 11.

the assessments referred in item 11 must done in order determine whether dismissal appropriate in circumstances. item 11 of code provides person determining whether dismissal arising ill health or injury unfair should consider

whether or not employee capable of performing work; and,
if employee incapable

the extent employee able perform work;
the extent employee’s work circumstances might adapted accommodate disability, or, not possible, extent employee’s duties might adapted; and
the availability of suitable alternative work.

once again dismissal must both substantively , procedurally fair.

substantive , procedural fairness

various aspects of substantive , procedural fairness illustrated in item 10.

incapacity on grounds of ill health or injury may temporary or permanent. if employee temporarily unable work in these circumstances, employer should investigate extent of incapacity or injury. if employee absent time unreasonably long in circumstances, employer should investigate possible alternatives short of dismissal.

when alternatives considered, relevant factors might include

the nature of job;
the period of absence;
the seriousness of illness or injury; and
the possibility of securing temporary replacement ill or injured employee.

in cases of permanent incapacity, employer should ascertain possibility of securing alternative employment or adapting duties or work circumstances of employee accommodate employee’s disability.

in process of investigation referred above, employee should allowed opportunity state case in response, , assisted trade union representative or fellow employee.

the degree of incapacity relevant fairness of dismissal. cause of incapacity may relevant. in case of kinds of incapacity, alcoholism or drug abuse, counselling , rehabilitation may appropriate steps employer consider.

particular consideration should given employees injured @ work or incapacitated work-related illness. courts have indicated duty on employer accommodate incapacity of employee more onerous in these circumstances.

item 10(1) highlights nature, degree , extent of incapacity, , steps employer should take accommodate employee. whether incapacity temporary or permanent important consideration.

item 10(2) sets out guidelines procedural fairness. there has been debate whether process entails formal hearing. long employee given fair opportunity indicate why should not dismissed, however, feature has been complied with.

the degree of incapacity plays role (see item 10(3)).

the employer’s duty accommodate emphasized, particular reference employees incapacitated due work-related injury or illness (see item 10(4)).

a related issue if of habitual absenteeism, employee absent work due illness or injury. appears approach of court vary according degree , nature of absenteeism. frequent , lengthy absences due ill health may justify termination @ point employer can no longer expected tolerate such absences.

disability

in many cases, terms incapacity , disability used interchangeably. incapacity may due accident causing loss of limb or slow onset of illness cancer or hiv/aids, or person may have been born physical or mental impairment others perceive disability.

the real issue in equity or anti-discrimination legislation protect rights of disabled people, particularly in area of employment, employers may perceive ‘disabled person’ unsuitable workplace.

although constitution , lra both have general equity provisions people disabilities, there no statutory definition in these acts. eea, however, defines people disabilities people have long-term or recurring physical or mental impairment substantially limits prospects of entry into, or advancement in, employment.

the americans disabilities act (arguably important international legislation in field) defines disabled person 1 has physical or mental impairment substantially limits major life activity, person has past record of such impairment, or person regarded other people having such impairment.

reasonable accommodation means modification or adjustment job or working environment enable person designated group have access or participate or advance in employment.

a dismissal based on disability may automatically unfair, giving employer no defense , judge no discretion—except dismissal may fair if reason based on inherent requirement of job.

the employer bear onus of proving dismissal disability based on inherent requirements of job , dismissal both substantively , procedurally fair.