24 April 2025
Incapacity due to ill health is a sensitive issue in the workplace that requires careful navigation. South African labour laws, especially the Labour Relations Act, provide clear guidelines regarding the rights of employees who are unable to perform their duties due to ill health, as well as the obligations of employers to reasonably accommodate these employees. This newsletter will delve into the employer's responsibilities under the Labour Relations Act and explore how far the duty to accommodate extends.
Understanding the Basics of Incapacity due to Ill Health
Incapacity occurs when an employee is unable to perform their work because of illness, injury, or disability. Under South African labour legislation, when an employee is unable to carry out their job due to ill health, employers are required to take steps to reasonably accommodate the employee, provided that the impairment substantially limits their ability to perform essential job functions. The nature of the reasonable accommodation depends on the job, the employee’s impairment, and the work environment. In practice, if an employee's health condition prevents them from performing their core duties, an employer must explore alternative arrangements, which may include modifying the employee’s work environment or duties, providing assistive devices, or transferring the employee to a different position that suits their current abilities.
Assessing the Employer’s Duty to Accommodate an Employee
Employers have a duty to accommodate employees who suffer from illness or injury for as long as it is reasonable to do so. The type of accommodation required will depend on several factors, such as the employee's specific impairment, the work environment, and the essential functions of the job. Employers must ensure that they are not asking an employee to perform tasks that they are physically or mentally incapable of completing due to their health condition. Where alternative work arrangements are not feasible, and the employee’s condition persists, the employer must consult with the employee to explore the possibility of medical boarding or alternative employment that may be appropriate based on the employee's capacity.
When an employee is injured or becomes ill due to work-related causes, the employer's duty to accommodate becomes even more significant. The law places a higher duty on employers to take steps to assist these employees, including providing appropriate alternative work or modifying their duties where possible. Employers must be particularly diligent in such cases to avoid any unfair treatment or discrimination.
Key Steps in Managing Incapacity
Dismissal due to incapacity arising from ill health or injury can be a fair reason for termination of employment. However, before proceeding with such a dismissal, the employer must follow specific procedures set out in Schedule 8 of the Labour Relations Act. Items 10 and 11 of Schedule 8 set out the necessary steps to ensure the fairness of the dismissal process:
- Investigate the Extent of the Incapacity - The employer should assess whether the employee is temporarily or permanently incapable of performing their job due to illness or injury. If the incapacity is temporary, the employer must consider alternatives such as securing a temporary replacement, adjusting the employee’s duties, or offering rehabilitation or counselling if applicable. In the case of permanent incapacity, the employer must explore options for adapting the employee’s duties or working conditions or providing alternative employment where possible.
- Consultation and Assessment: The employee must be given an opportunity to respond to the assessment of their incapacity. Employers should consider the seriousness of the illness or injury, the period of absence, and the impact of the incapacity on the workplace.
- Exhausting Alternatives: Before proceeding with dismissal, the employer must demonstrate that all reasonable alternatives to dismissal have been explored. This includes attempting to accommodate the employee’s incapacity through alternative roles or modified duties. Employers are not required to retain an employee if their incapacity is permanent and no accommodation or alternative work is available, provided a thorough investigation has been conducted.
Case Study
In the recent case of Le Franschhoek Hotel v Commission for Conciliation, Mediation and Arbitration and Others (C238/2022) [2025], the Labour Court was tasked with assessing the extent to which the employer was obliged to accommodate one of their employees. In 2019, Glenford Ferus, an executive chef, was off-duty and was informed that a fire had broken out in the company’s kitchen. Upon arriving, he initially found the fire uncontrollable, but managed to contain the situation, preventing further damage. Despite inhaling smoke, which affected his lungs, Ferus continued to experience health issues, including sleep problems, panic attacks, and anxiety. His doctor diagnosed him with a major depressive episode and anxiety. After taking time off for treatment, he was later asked to attend an incapacity hearing and was eventually dismissed for incapacity. At the CCMA, the commissioner found that the mental and emotional effects Ferus experienced were caused by the experiences canvassed above, and an occupational therapist recommended he return to work with support, which Ferus wanted, but Le Franschhoek was unwilling to provide. The commissioner ruled that, due to the workplace injury, Le Franschhoek had a greater responsibility to assist Ferus and could have helped him return to his previous performance level. The commissioner concluded that Le Franschhoek’s failure to provide the necessary support or reinstate Ferus in his position amounted to an unfair dismissal, and the Labour Court agreed with this assessment, subsequently dismissing Le Franschhoek’s review application.
Conclusion
Incapacity due to ill health is a complex and sensitive issue that requires employers to balance the rights of the employee with the needs of the business. South African labour law ensures that employees who are temporarily or permanently incapacitated are treated fairly, and employers are required to make reasonable efforts to accommodate their impairments. By adhering to the guidelines in Schedule 8 of the Labour Relations Act, employers can ensure that they handle incapacity-related dismissals fairly and in compliance with the law.
