Employees who are unable to perform their duties at the required standard can have a major impact on a business, as most employers do not have spare capacity to compensate for a deficit in productivity.
Employers have the right to establish a fixed standard in the workplace in terms of quality and output of work, and to give reasonable and lawful instructions.
Incapacity is the inherent inability of an employee to perform work to the employer’s established standards of quality and quantity due to ill health or injury, which can be temporary or permanent.
The Code of Good Practice in the Labour Relations Act (LRA) sets clear guidelines on how employers should deal with incapacity in the workplace.
It is important to note that the employer can under no circumstances dismiss an employee when dealing with incapacity, without following the correct procedure. Dismissal must be both substantively and procedurally fair.
These steps should be followed:
- Notify the employee: The employer should issue the employee with a written notice to attend a consultation to discuss his or her unsatisfactory work performance. The employee should be given at least 48 hours’ notice, excluding weekends and public holidays, to prepare for the consultation.
- First consultation: During the consultation, the employee must be afforded an opportunity to explain why he or she is not meeting the required standards. During all consultations on incapacity, the employee has the right to be assisted by a trade union representative, a fellow employee or any other person who has the mandate to act on behalf of the employee.
If the employee is incapable of attending any consultations, the employer should present a practical solution, for example, visiting the employee at home or in hospital, or dealing with the employee’s representative.
The following aspects should be addressed during the consultation:
- The required standard of work performance in the workplace;
- The employee’s duties;
- Why the employer believes the employee is failing to meet these standards;
- The possible consequences of incapacity where the required standard of work performance is not met due to ill health or injury.
3. Investigation: The employer must investigate and establish whether the employee is capable of performing his or her duties according to the required standard. If the employee is not capable, the employer must evaluate the seriousness of the incapacity by considering the following:
The nature of the employee’s job – does it entail a specialised skill?
The period of absence – is the incapacity permanent or temporary, and what is the time-frame?
The seriousness of the employee’s illness or injury. The employee must provide the employer with a medical report that states the extent of his or her incapacity, whether or not it is permanent, and the type of work, if any, that he or she is capable of performing. The employer cannot, however, force an employee to undergo medical testing without the person’s permission.
The employer cannot, however, force an employee to undergo medical testing without the person’s permission.
The possibility of accommodating the employee’s disability. Options include temporarily adjusting the employee’s duties and terms and conditions of employment, such as working hours and place of work, among others.
The possibility of securing alternative employment, such as a position in a different department or section of the business.
4. Further consultation and implementation of solution: After obtaining all the relevant information, the employer must have another consultation with the employee to discuss the outcome of the investigation.
The employer should take all possible steps to assist the employee and implement the best remedy for the employee’s incapacity. Only if there is no alternative to dismissal can the employer can go ahead and dismiss the employee.