Incapacity

Incapacity, where employees who are unable to perform at the required standard have a huge impact on a business’s normal operations. Most employers don’t have the luxury of spare capacity concerning their workforce to compensate for this deficit. Employers have the right to establish a fixed standard in the workplace in terms of quality and quantity and to give reasonable and lawful instructions.

What is incapacity?

Incapacity is defined as the inherent inability of an employee to perform work to the employer’s established standard in terms 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 of how employers should deal with incapacity in the workplace.

Follow the incapacity procedure

It is vital to note that the employer can under no circumstances dismiss and employee when dealing with incapacity, without the correct procedure. Dismissal must always be both substantively and procedurally fair.

 The following steps are typical of an incapacity procedure:

Step 1: Notify the employee

The employer should issue the employee with a written notice to attend a consultation to discuss his/her unsatisfactory work performance. Take note to give the employee at least 48 hours’ notice of the consultation to prepare. This period must exclude weekends and public holidays.

Step 2: First consultation

During the consultation the employee must be afforded and opportunity to state his/her case and explain why he/she is not meeting the required standards. During all consultations regarding incapacity the employee has the right to be assisted by a trade union representative, a fellow employee or any other person that 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.

Take note to talk about the following:

  • the required standards of work performance in the workplace
  • all duties required of the employee
  • the reasons why the employer is of opinion that the employee is failing to meet these standards
  • possible outcomes of incapacity where the required standards of work performance is not met due to ill health or injury.

Step 3: Investigation

The employer must investigate and establish whether the employee is capable of performing his/her duties at the required standards. If the employee is not capable, the employer must evaluate the seriousness of the incapacity by considering the following:

  • nature of the employee’s job – does it entail a specialised skill?
  • possible outcomes of incapacity where the required standards of work performance is not met due to ill health or injury
  • seriousness of the employee’s illness or injury – the employee must provide the employer with a medical report that sates the degree and permanency of the employee’s incapacity. The record must also contain the type of work, if any, the employee is capable of performing. The employer cannot force an employee to undergo medical testing without the employee’s permission.
  • possibility of accommodating the employee’s disability – options include temporarily adjusting the employee’s duties as well as terms and conditions of employment. For example, working hours, place of work, ect.
  • possibility of securing alternative employment, such as a position in a different department or section of the business.

Step 4: Further consultation and implementation of the agreed upon solution

After obtaining all the relevant information the employer must have another consultation with the employee. The outcome of the investigation will then be discussed. The employer should take all possible steps to assist the employee and implement the best remedy to the employee’s incapacity. If there is no alternative to dismissal, the employer can go ahead and dismiss the employee.

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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