Incapacity as a ground for dismissal

In South Africa, incapacity as a ground for dismissal relates to an employee’s inability to effectively perform their duties and responsibilities, mainly due to poor work performance, ill health or injury. The Labour Relations Act, Act 66 of 1995 (LRA) regulates this dismissal and requires it to be substantively and procedurally fair.

Categories of incapacity

Dismissal on grounds of incapacity is mainly placed into two categories:

• Poor work performance: Poor work performance refers to situations where an employee consistently fails to meet the required standards of their job. This incompetence does not stem from misconduct, but from an employee’s lack of skills, knowledge, or ability to perform their duties.

• Ill health or injury: When an employee is unable to perform their duties due to physical or mental health challenges, or an injury sustained, this form of incapacity becomes a possible ground for dismissal.

Other common examples of incapacity include operational incapacity, which refers to when an employee is unable to comply with an inherent requirement, provision or condition of their employment, or of legislation. For example, if it is absolutely essential for an employee to have their own reliable vehicle to carry out their work duties, this could lead to a possible case of incapacity if the employee no longer has a vehicle at their disposal.

Fairness

The LRA provides the basis for dismissal on grounds of incapacity and emphasises fairness and fair procedures. Section 188 of the LRA provides that a dismissal must be both substantively and procedurally fair. Furthermore, Schedule 8 of the LRA, the Code of Good Practice: Dismissal, provides guidelines on how to deal with this type of dismissal.

• Substantive fairness requires that there must be a valid reason for the dismissal. In the case of incapacity due to poor work performance, the employer must be able to prove that the employee’s performance was below the expected standard, that the employee was aware of the standard, received reasonable training and assistance to achieve the standard, and that the employee’s performance negatively affected the business. In the case of ill health or injury, the employer must be able to prove that the employee’s medical and/or psychological condition does not allow them to fulfil their contractual obligations.

• Procedural fairness involves the employee being consulted, informed of their shortcomings or health problems and given the opportunity to improve or redress. In the event of poor work performance, the employer must offer training, guidance or additional resources to help the employee meet the required standard. In cases of ill health, the employer must explore alternative roles or adjustments before dismissal can be considered.

Case study

In the case of Parexel International (Pty) Ltd v Chakane and Others [2019] 11 BLLR 1245 (LAC), the Labour Appeal Court heard a case involving an employee who had been absent from work for nine months due to an on-the-job injury. The court held that an employer cannot be expected to tolerate an employee’s prolonged absence due to ill health and that an employer is not obliged to keep the employee’s job open indefinitely. However, the court also emphasised the importance of thorough disability investigations to assess the employee’s condition and explore possible adjustments before dismissal can be considered as an absolute last resort.

Legislation requires employers to make reasonable accommodations for employees with disabilities or health conditions, particularly where these arise from the scope of their work. This includes adjusting working hours, modifying duties, or providing assistive technology. Failure to consider such measures may render dismissal on grounds of incapacity unfair.

Incapacity as a ground for dismissal requires employers to strike a balance between operational needs and the rights of employees. Labour law requires that dismissals on this ground be handled with fairness and empathy. Employers must follow fair procedures, provide opportunities for improvement and consider reasonable accommodation before terminating an employee’s employment as an absolute last resort.

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