The previous three articles dealt with misconduct, dismissals on the basis of participation in an unprotected strike (and in line with current case law also covering the collective withdrawal of labour) and incapacity poor work performance. In this article, we will deal with some of the important aspects dealing with incapacity: ill-health, injury and other forms of incapacity as contained in the Code of Good Practice: Dismissal (the Code).
What are the similarities contained in item 21 of the Code, as compared to the repealed Schedule 8?
How does the Code deal with supervening impossibility of performance?
What are the new guidelines contained in the Code dealing with incompatibility?
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Similarities between item 21 of the Code, when compared to the repealed Schedule 8
Item 21(1) to item 21(5) of the Code correspond largely with items 10(1) to 10(4) of the repealed Schedule 8, apart from the Code indicating specifically that ill-health includes both physical and mental ill-health (in line with current case law).
Item 21(6): incapacity unrelated to ill-health or injury
The supreme court of appeal, in Samancor (2011) 32 ILJ 1618 (SCA), held that various instances of supervening impossibility of performance should be treated as incapacity in terms of items 10 and 11 of the repealed Schedule 8 (in essence, bringing supervening impossibility of performance within the ambit of incapacity ill-health or injury). These instances include imprisonment, a military call-up, being subject to a closed shop restriction and legal prohibition on employment (e g not complying with the requirement to have a valid type of licence).
The above approach was subsequently followed by the labour appeal court in Armscor (2018) 29 SALLR 16 (LAC). The aforesaid approach has found its way into item 21(6) of the Code and imprisonment is provided as an example preventing an employee from performing duties. The Code clearly indicates that the employer must:
- determine whether such supervening impossibility of performance is temporary or permanent
- assess the extent of the incapacity
- investigate all possible alternatives short of dismissal
No matter how this type of incapacity is evaluated, it appears that, both in terms of the aforesaid case law, as well as the Code, the substantive and procedural fairness requirements to be complied with are those of incapacity ill-health or injury and not incapacity poor work performance.
Item 21(7) of the Code: incompatibility
The Code categorises incompatibility as the inability of an employee to work in harmony with an employer’s business culture, or with fellow employees. The Code clearly indicates that such incompatibility may justify dismissal. In respect of such incompatibility, the following is of relevance:
- incompatibility is located in item 21 dealing with incapacity ill-health or injury and not item 20 dealing with incapacity poor work performance
- it can thus be assumed that such incompatibility is to be dealt with in terms of the substantive and procedural fairness requirements relating to incapacity ill-health or injury and not incapacity poor work performance
- thus, in line with case law, the viewpoint is held that the potential dismissal in this regard is, at least, subject to the following two considerations, specifically applicable to incapacity ill-health or injury:
- the extent to which the employee’s work circumstances may be adopted or, if not possible
- the extent to which the employee’s duties may be adopted
