Poor Performance

LRA provides strong protection for sick, disabled

Ivan Israelstam

The law prohibits employers from disciplining employees who are ill or disabled

 For example, an employee who uses narcotics and becomes addicted is legally classified as being ill and is protected by law. Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability or illness.

This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.

Furthermore, section 187(1)(f) of the Labour Relations Act (LRA) says that: "A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility."

The fact that disability is included in the above list means, for example, that if your receptionist loses an arm in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled receptionist looks bad to customers who come to visit.

You would have to prove that this receptionist is in fact unable to work before you could even consider terminating his/her employment. In the case of Black Mountain v CCMA and others (2005 1 BLLR 0001) the employee was found guilty of causing damage to the employer's property while driving under the influence of alcohol.

The employee was dismissed and referred an unfair dismissal dispute to the CCMA as he believed he should have been sent for alcoholic rehabilitation instead of being fired. The CCMA arbitrator agreed and overturned the dismissal. The employer applied to the Labour Court for the arbitrator's decision to be reviewed.

However, the Labour Court, after looking at the employer's policy in regard to alcohol-related infringements, decided that:

  • The employee had been wrong in what he had done.
  • The employer should have allowed the employee to go for rehabilitation.
  • The dismissal was unfair
  • The employer was required to reinstate the employee and to give him back-pay for a period of 18 months.
  • The employer was to pay this money to the employee with interest.

In the case of Mthethwa v Capitol Caterers (2007, 5 BALR 469) the employee was dismissed after he was off ill from work for two weeks. The CCMA ordered the employer to reinstate him with full back-pay, because the employer had failed to follow the incapacity laws.

The above cases make it clear that, although employees can be dismissed for abusing sick leave, absence without permission and poor work performance:

  • Sick employees are strongly protected from unfair treatment aimed at their disabilities.
  • Alcohol abuse can be seen as an illness in South African law.
  • Employers are legally required to adhere to their own policies.
  • Treatment must be considered before dismissal of a sick employee can be considered.
  • The incapacity procedure prescribed by law cannot be ignored.

Therefore all employers are advised to:

  • Check with a labour law expert as to whether or not the circumstances merit dismissal.
  • Explore every alternative to dismissal before considering terminating the employment of a sick employee.
  • Genuinely and thoroughly involve the incapacitated employee in the process of consideration of alternatives, giving the employee ample opportunity to state his/her case.
  • Formally place on record every step taken in the above process.
  • Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.

Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted on 011-888-7944 or [email protected]

Our appreciation to Ivan and The Star newspaper for permission to publish this article

 

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