Permanent and temporary medical incapacity

Incapacity refers to when an employee is incompetent and inherently unable to meet fixed performance standards whether due to ill health or poor work performance.  When the employee cannot perform according to the employer’s required standard due to ill health, the employer should consider the nature of the employee’s job, period of absence, seriousness of the employee’s illness or injury, possibility of accommodating the employee’s disability and possibility of securing alternative employment within the business.

Employees who are unable to perform at the required standard have a huge impact on a business’s normal operations, as 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.

It is vital that employers always follow the correct procedures as required by labour legislation:

The investigation process

When an employee is absent on a regular basis, the employer should keep a record of the dates and reasons for the absence on file. If it is continuously for the same reason, it may be that there is an underlying medical reason that should be investigated if it affects the operational requirements of the business.

If the employee brings to the employer’s attention that he/she has a medical condition, or the employer is of the opinion that the employee has a medical condition that affects the employee’s ability to do their job, a consultation process should be held with the employee.

The consultation process

Consult with the employee to determine what the medical condition is and how it is affecting the employee’s work. Discuss the way forward and determine whether it is necessary to send the employee for a medical examination. Ensure that all consultations held with the employee are kept on record and held in the presence of a witness.

The medical examination

The employer should request the employee to obtain a medical report. It is highly recommended that the employer provide the medical practitioner who will be doing the examination, with the employee’s required duties on a day-to-day basis.  The medical report should highlight the following:

• the cause of the incapacity;
• whether the medical condition is going to improve or worsen; and
• what is the expected period for the medical condition to improve.

If the employer requests the medical report, the employer may be liable for the costs thereof.  It is important to set a date by when the employee should provide the medical report.

The employee is entitled to obtain a second opinion. Likewise, if the employee obtained the medical report on their own account, the employer may obtain a second opinion. Furthermore, if an employee requests to proceed with further medical testing, allow them the opportunity to do so.

The assessment

On receipt of the medical report, the employer will be in a position to determine the way forward. The employee’s health and employer’s operational requirements need to be considered. If the employee recovers, it is not necessary to proceed with an incapacity hearing. The employer can however, continue to monitor the individual.

The incapacity hearing

At the incapacity hearing, it will be necessary to determine whether the incapacity is temporary or permanent. Discuss the following questions thoroughly at the hearing:

• Are the circumstances permanent or what is the expected duration of the incapacity?
• Is it clear how long the employee will be absent or unable to perform their duties?
• Is there a period of light duty prescribed by the medical practitioner?
• Does the employer have light duties available for the employee?
• Can the employer make use of a temporary worker until the employee is able to continue working?

If the incapacity is temporary, the employer should determine whether it is possible to accommodate the employee and further, whether the employer can reasonably adapt the work environment to accommodate the employee. Dismissal should only be reserved for, and reverted to as a last resort once all options have been explored. If the incapacity is permanent, which is confirmed by a medical practitioner, the employer may have no other option but to proceed with a dismissal.

If an employee is dismissed for incapacity after following a fair process, the employer should pay out any accumulated leave, salary up to the last working day (possibly sick leave if medical certificates were produced) and the notice period as agreed upon in the employment contract.

It is important that employers deal with issues in the workplace as quickly and effectively as possible, while taking care to act objectively and consistently.  By being proactive, the employer can greatly contribute towards the business’s sustainability and profitability and ensure a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive to growth.

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