Discipline and Dismissal


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. 

 

For further information, contact  

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

  • Davies v Clean Deale CC

  • X v Elvey International (Pty) Ltd

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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