Fairness of dismissal for incapacity - ill health

We dealt previously with the fairness of dismissal for misconduct, and for Incapacity – Poor Work Performance. We are now taking a look at the fairness of dismissal in cases of incapacity based on ill health. The previous Labour Appeal Court held that the substantive fairness of a dismissal based on incapacity due to ill-health, depends on the question whether the employee can fairly be expected to continue in the employment relationship, bearing in mind the interests of the employee and the employer and the equities of the case

Other factors to be considered would include the nature of the incapacity, the cause of the incapacity, the likelihood of recovery, and the likelihood of improvement or indeed – recurrence. The period of absence and its effect on the employer's operations must also be considered as well as the effect of the employee's disability on other employees. This means what kind of message would be sent out to the other employees if the employer consistently condoned the unhealthy employee's absences? The employees work record and length of service must also be considered.

The test is whether, because of the employee's absences and incapacity, and considering the frequency and duration of such absences, and the effect that it has on the employee's co-workers morale, the question to be asked is can the employer in all fairness, be expected to wait any longer before considering dismissal ? This approach has been held to apply both in cases of lengthy absence, and in cases of intermittent absences from the workplace. There are certain rules to be followed in determining fairness.

The employer must ascertain whether the employee is capable of performing the work that he was employed to do, and if not the extent to which he is unable to perform those duties.   The employee is entitled to participate in this investigation, which may require further medical investigation, and the employee can also be asked to demonstrate his ability.

If the employee's duties cannot be adapted in such a way that the employee is able to fulfil those duties, and no alternative position is available, then dismissal may be justified.  If the employees are offered a lower position and a lower salary is attached to that position, then the lower salary will apply. Thus, it is obvious that the principles of procedural fairness and substantive fairness applies to such dismissals, as it applies also to all types of dismissal. 

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• Sources: Hendricks v Mercantile & General Reinsurance Co of SA Ltd

• Davies v Clean Deale CC

• X v Elvey International (Pty) Ltd