Incapacity in labour law is the non-blameworthy breach of performance standards i.e. the employee is unable to cope with the work and the lack of performance is not due to his/her fault. The Labour Relations Act 66 of 1995 (LRA) Section 188(1)(a)(i) addresses the capacity of the employee and the employer’s right to terminate the employee’s services should the capacity not be as required.
Let’s look at five reasons that incapacity can be based on.
Ill Health
This is the most common incapacity that we deal with, and the procedure is largely well known.
Unsuitability
This type of incapacity occurs where employees are unsuited to their work because of their disposition or character. Examples of this include a doctor who faints at the sight of blood, or an air hostess who has a fear of heights.
Incompatibility
A case of incompatibility occurs where employees do not ‘fit in’ with the working environment and relate poorly to colleagues and clients. Examples are those who do not get along with the team, personality clashes, or a manager whose management style does not work with his/her subordinates.
In Wright v St Mary’s Hospital (1992) 13 ILJ 987 (IC) the following procedure is given to determine whether there is an incompatibility and if there are grounds for incapacity:
- The employee must be advised regarding what conduct allegedly caused the disharmony.
- The employee must be informed of who has been upset by the conduct.
- The employee must be given a fair opportunity to consider the allegations and prepare his/her reply thereto.
- He/she must be given a proper opportunity to put his/her version forward.
- Where it is found that he/she was responsible for the disharmony, he/she must be given a fair opportunity to remove the cause of the disharmony if at all possible.
- Remedial action must be suggested to remove the incompatibility.
Legal Reasons
Where a foreign employee’s work permit has expired and is not renewed, rendering them ineligible to legally work in the country, the employee will be incapacitated.
Supervening Impossibility of Performance
This occurs when there are circumstances outside the control of the employee that caused them to be unable to perform. This includes when an employer has an employee who they can no longer place at a client due to the client refusing to have this person on site.
It is important to know that while incapacity hearings (when an employee is unable to perform their job due to inability) and disciplinary hearings (due to intentionally failing to perform a duty, being negligent in carrying out duties, deliberately breaking the employer’s rules, or doing something illegal) are two completely different procedures, they can end in the same result: dismissal.
Ensure that you know the correct procedures to follow to avoid prolonging the process or having to go through a Commission for Conciliation, Mediation and Arbitration case.