Question

What are the five considerations relevant to the substantive fairness of a dismissal for permanent incapacity?

Unfair dismissal and residual unfair labour practices. Based on South African Labour law act questions

Answer 1

Dismissal for incapacity

Incapacity is one of the internationally recognized grounds for a fair dismissal, provided that a fair reason exists for the dismissal and that a fair procedure has been followed.

Section 188 of the LRA refers only to "incapacity." It does not distinguish between poor work performance and ill health or injury.

Considerations relevant for Substantive and procedural fairness

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.
2. 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, like alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for the employer to consider.
3. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
4. Item 10(1) highlights the nature, degree and extent of the incapacity, and the steps the employer should take to accommodate the employee. Whether the incapacity is temporary or permanent is also an important consideration.
5. Item 10(2) sets out the guidelines specifically for procedural fairness. There has been debate as to whether this process entails a formal hearing. As long as the employee is given a fair opportunity to indicate why he should not be dismissed, however, this feature has been complied with.