Procedural and Substantive Fairness in Other Forms of Incapacity
The publication of the Amended Code of Good Practice marked a significant development in the treatment of workplace incapacity, with the amendments taking effect on 4 September 2025.
For decades, employers found a degree of certainty within the traditional frameworks governing incapacities for poor work performance and illness. The pillars for procedural and substantive fairness, as meticulously detailed in the existing Code, provide a clear roadmap for employers to deal with these two forms of incapacities. Other forms of incapacity, however, received limited attention in the original Code of Good Practice, leaving a degree of uncertainty around the principles and processes applicable to them.
The amendments open the door to a broader approach to workplace incapacity by expressly recognising other forms of incapacity, albeit to a limited extent at this stage. This creates scope for greater scrutiny of forms such as supervening impossibility, incompatibility and illegality, and for jurisprudence to develop a more structured approach to these circumstances.
The significance of these amendments lies not simply in the recognition of additional forms of incapacity, but in the need to understand the distinct legal and procedural considerations that arise in each case.
Incompatibility
Incompatibility relates essentially to the subjective relationship between an employee and their co-workers within the employment environment, specifically focusing on the employee’s inability or failure to maintain cordial and harmonious relationships with their peers.
The definition, however, does not expressly address the requirement that the disharmony must stem from the particular employee, that the employee must be made aware of their role in causing it, and that they must be given an opportunity to address and rectify the behaviour. If the employee remains unable or unwilling to address the conduct giving rise to the disharmony, the employer must then establish that the resulting incompatibility is sufficiently serious to justify dismissal.
The burden of addressing disharmony seems to be most appropriately approached with the considerations provided in the matter of Wright v St Mary’s Hospital [1992] 13 ILJ 987 (IC). It held that an employee must be advised of what conduct allegedly caused disharmony, who has been upset by the conduct, and what remedial action is suggested to remove the incompatibility. The employee must also be given a fair opportunity to consider the allegations, to prepare a reply thereto, and to provide his/her version of events. Where the employee is found responsible for the disharmony, he/she must be given a fair opportunity to remove the cause for disharmony.
The notion that it was the conduct of the employee that was the primary cause of the disharmony is also reiterated in the matters of Subramuny v Amalgamated Beverages Industries Ltd [2000] 2780 ILJ (LC) and SA Quilt Manufacturers v Radebe. Employers should further consider that incompatibility is not merely a matter of personal chemistry or compatibility between colleagues. It requires a fundamental incompatibility that renders the employee’s continued employment intolerable or impractical.
Employers must exercise extreme caution to ensure that they are not merely labelling an employee as “disharmonious” as a pretext for penalising them for using formal workplace processes. In Jabari v Telkom SA (Pty) Ltd (JS799/04) [2006] ZALC 63; [2006] 10 BLLR 924 (LC), the Labour Court spoke out against labels when it found that multiple grievances and disputes were based on valid grounds and were not filed frivolously.
Before proceeding with a dismissal, management should treat the following questions as a reflective self-assessment:
- a) Have we clearly identified and communicated to the employee the specific conduct causing the alleged disharmony?
- b) Can we demonstrably prove that the operations of the business or the well-being of other employees have been negatively impacted?
- c) Has the employee been granted a genuine, fair opportunity to state why they believe they are not the source of the disharmony?
- d) Is the evidence sufficient to prove that this specific employee is the actual source of the friction?
- e) Have we exhausted all reasonable remedies or alternatives to rectify or remove the disharmony without resorting to dismissal?
- f) Is the conduct causing the disharmony truly intolerable when weighed against our specific business culture?
Legal Incapacity
Incapacity based on a legal requirement, or “legal incapacity”, arises where a statutory or other legal prohibition prevents an employee from lawfully performing their duties. This differs from general impossibility because the impediment arises from a specific legal prohibition. Common examples include a foreign national who lacks valid work authorisation or a financial adviser who has been prohibited by law from providing financial advice due to regulatory non-compliance. In such circumstances, the legal impediment may prevent the employee from fulfilling their contractual obligations and requires the employer to follow a fair process in accordance with the Labour Relations Act.
Substantive fairness in this category requires the existence of a clear legal impediment that renders continued employment unlawful. A primary example is Section 38(1) of the Immigration Act, which prohibits the employment of unauthorised foreigners (see Discovery Health Limited v CCMA 2008 7 BLLR 633 (LC) and FNB v CCMA & Others 1476/1016). Furthermore, the employee must have actual knowledge and awareness of the requirement. In the Roots Butchery matter (Sibanda and Others v Roots Butchery (2025) 46 ILJ 2969 (CCMA)), dismissal was fair because the employees had known for years that their asylum status was not indefinite and required a transition to work permits.
The employer must prove that the employee failed to rectify the deficiency despite being given reasonable opportunities (Sithole v Metal and Engineering Industries Bargaining Council & Others 2018) and that continued employment exposes the business to significant risks.
Finally, as seen in ARMSCOR v CCMA & Others JR1961/13, the employer must distinguish legal incapacity from retrenchment; if the issue is the individual’s legal unfitness rather than operational redundancies, incapacity is the correct legal avenue.
Procedural requirements hinge on meaningful consultation, either individually or collectively. As established in Sithole and Roots Butchery, the employer must provide reasonable assistance and documentation to help the employee to resolve the legal barrier. The process must involve a formal investigation into the cause of the incapacity and the exploration of alternatives, such as allowing time for permit applications or alternatively legal compliance (provided that it does not entail an undue burden).
Ultimately, a formal incapacity hearing should be conducted where a facilitator assesses the employee’s compliance efforts and verifies their awareness, all supported by thorough documentation of meetings and proof of requests for compliance.
Supervening Impossibility
The doctrine of supervening impossibility applies when an employment contract can no longer be fulfilled due to an objective and unavoidable impediment. To successfully raise this doctrine, the performance must be objectively impossible, not merely difficult, more burdensome, or economically onerous. Furthermore, the impossibility must be objectively unavoidable (Roxanne Maher and Avianto Pty Ltd 2025 1 ALL SA 410 (GJ).
This often arises when a third party, such as a client or a regulatory body, refuses to perform a contractual obligation or bars an employee from a site. In such cases, the employer is unable to utilise the employee’s services due to a third party’s refusal (South African Forestry Company Limited v York Timbers Limited 2005 (5) SA 323 (SCA)). Generally, the impossibility must be permanent; if a statutory review or appeal is pending, the incapacity may be viewed as merely temporary (Swissport SA Pty Ltd v Seanego & Others 2017 ZALC JHB 371).
A fair dismissal in this category requires the employer to establish a “good and sufficient foundation” particularly when facing external pressure. This includes scenarios involving third-party demands, such as employee demands for the dismissal of a manager (Lebowa Platinum Mines Ltd v Hill (1998) 7 BLLR 666 (LAC)). Rather than “blindly following” a third party’s decision, the employer has a duty to independently investigate the incident or barrier (Swissport SA Pty Ltd v Seanego & Others [2017] ZALC JHB371). Management must assess whether the threat from the third party is real and likely to be implemented, proving that they made “reasonable endeavours” to dissuade the third party from their demand. Meaningful consultation is paramount. The employer must consult “fully and properly” with the employee to allow for input regarding the situation and potential alternatives, such as placement at a different site or in a different role.
Employers should also offer practical support, such as assisting an employee in regaining a confiscated permit or accreditation. Throughout this process, the employer must carefully weigh the extent of the injustice that the employee will suffer. Dismissal must be the only fair option remaining, as emphasised in South African Private Security Workers’ Union obo Nomavila v Bosasa Operations (Pty) Ltd [2016] 7 BALR 759 (CCMA).
Key Principles for Employers
The express recognition of alternative forms of incapacity in the amended Code provides greater clarity, but it does not create a shortcut to dismissal.
Whether the incapacity arises from incompatibility, a legal impediment, or supervening impossibility, employers must still apply a careful, evidence-based and procedurally fair process.
The guiding principle remains that dismissal should follow only where the employer can establish the nature and extent of the incapacity, demonstrate that reasonable alternatives have been explored, and show that continued employment is no longer viable.
Written by Juan-André Mulder
