Access Denied: When an Employee is Barred from a Client’s Premises
In industries such as cleaning services, security, mining, and facilities management, it is common for employees to work on-site at client premises as part of a service agreement. But what happens when a client informs the service provider that an employee is no longer allowed on-site?
This raises a difficult operational and legal question: How can the employer fairly deal with a willing and able employee who is now unable to perform their duties due to being barred from accessing the client?
The Legal Dilemma
In such a scenario, the employer is caught between fulfilling the client’s contract by replacing the barred employee, and maintaining fair labour practices towards the employee, who may now be unable to work through no fault of their own.
This gives rise to two possible legal processes:
- Dismissal for Operational Requirements (retrenchment under Section 189); or
- Dismissal for Incapacity
What the Courts Have Said
In Samcor Chrome Ltd (Tubatse Ferrochrome) v MEIBC & Others (2010) 31 ILJ 1828 (LAC), the Labour Appeal Court rejected the narrow view that incapacity applies only to ill health or poor performance. It held that other forms of incapacity, including inability to access a work site, may be valid. This gave rise to a new form of incapacity beyond personal health or performance to include supervening impossibility, an external factor preventing work performance.
In Swissport SA (Pty) Ltd v Seanego & Others [2017] ZALCJHB 37, an employee was banned from entering OR Tambo International Airport, which was a core requirement of his job. The Court held that supervening impossibility constituted a valid form of incapacity, accepting it as a fair reason for dismissal. The case illustrated that where access is denied by an external party (not by the employer) and alternatives are not viable, incapacity may be justified.
In FNB v CCMA (2017) the Labour Court distinguished between operational requirements and incapacity. Operational requirements focus on the employer’s business decisions, while incapacity focuses on the employee’s ability to meet requirements. The Court ruled that the dismissal in this case was based on incapacity rather than operational requirements because the employee could no longer legally fulfil his job obligations, which was not due to a company restructure or redundancy.
Process Required for Best Practice
There are certain guidelines that you can follow to ensure that you deal with a matter pertaining to incapacity related to supervening impossibility to perform safely:
- Establish the nature of the restriction:
- Is it permanent or temporary?
- Is there any possibility of resolving the issue with the client?
- Explore all reasonable alternatives:
- Investigate the possibility of reassignment to a similar role at a different site.
- Consider alternative placements or internal redeployment.
- Follow an incapacity procedure in a compliant manner:
- Invite the employee to a meeting.
- Explain the situation.
- Explore potential accommodations and consider their input to assess alternatives.
- If no other options exist, proceed to fair dismissal based on incapacity due to supervening impossibility.
- Ensure procedural fairness:
- Provide adequate notice.
- Allow representation.
- Issue a formal outcome with reasons.
- Pay statutory entitlements:
- Since this is a “no-fault” dismissal, the employee is entitled to notice pay.
Employer Caution
Employers cannot use supervening impossibility as a convenient escape from contractual obligations. Courts will scrutinise whether actual impossibility exists, whether the employer has acted in good faith, and whether all options were reasonably explored.
External Barriers, Internal Obligations
These cases highlight a nuanced area of labour law, where external barriers such as access denial can result in lawful termination under incapacity, not retrenchment. Employers must however proceed with diligence, fairness, transparent communication, and adherence to legal principles.
Written by Mandeli Meyer
