TERMINATION OF EMPLOYMENT ON ILL HEATH / INJURY

Every employee has the right not to be unfairly dismissed as stated in the labour law.  Once the existence of the dismissal is established, the employer must prove that the reason for the dismissal is a fair reason and effected in accordance with a fair procedure and the law.  If there is a dispute about the fairness of a dismissal, the aggrieved employee has 30 days to refer the matter to the CCMA or the appropriate Bargaining Council. 

Incapacity: Ill health or injury

(1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.

(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts and law have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.  

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