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Health and safety in the workplace is a matter of life and death, depending on the environment of course.

When an employee is injured or develops a disease due to (prolonged) exposure to harmful products, both the employer and employee have a role to play.

The Legal Framework

The Code of Good Practice: Dismissals provides detailed guidance to deal with ill health in the workplace.

Item 21 of the Code of Good Practice states that if an employee is unable to work due to ill health or injury, the employer should investigate the extent of the incapacity or injury. If the period in which the employee is set to be absent is unreasonably long, the employer should investigate alternatives short of dismissal. When alternatives are considered, relevant factors include the nature of the job, the period of absence, the seriousness of the illness or injury, and the possibility of securing a temporary replacement for the employee who is injured or ill.

In the event of permanent incapacity due to ill health or injury, the employer should investigate the possibility of securing alternative employment or adapting the work circumstances of the employee to accommodate the employee’s disability. The Code also stipulates that the cause and degree are relevant to the fairness of the dismissal based on this ground. Furthermore, the Code states that particular consideration should be given to employees who are injured at work or who are incapacitated due to a work-related illness.

Case Law Examples

When one thinks of incapacity and how to navigate the situation, particularly concerning an employee who sustained the injury while on duty, the case of Standard Bank of SA v CCMA and others is most commonly referred to. In this case, the employee, Ferreira, was involved in a motor vehicle accident while she was performing her duties as a home loan consultant. Over time, Ferreira’s ability to render services became limited as a result of the injuries sustained in the accident. Although she was often absent from work, she tried to remain fit for duty. In doing so, she had requested several items to accommodate her condition, including a headset and an ergonomic chair that would accommodate her limitations. This was denied by the bank. After several instances of assigning Ferreira different, increasingly menial tasks, the bank dismissed her for incapacity.

The Court found that the bank:

• Failed to accommodate Ferreira prior to dismissal, which should have been reserved as a last resort.
• Failed to obtain an occupational therapist report as recommended by three medical practitioners.
• Initially attempted to persuade Ferreira to go on early retirement, but due to the medical reports not confirming that she was permanently unfit to work, the early retirement application was rejected.
• Failed to accommodate Ferreira by adjusting her work hours to a half day and providing her with a headset to enable her to perform her duties on a specific platform.
• Further failed to ascertain what kind of chair would accommodate Ferreira’s condition and rather issued her with a chair from one of the bank’s stores that had broken three times, and which Ferreira had repaired at her own expense, despite not being responsible for same.

In EC Lenning Limited t/a Besaans Du Plessis Foundries v Pieter Engelbrecht the Labour Appeal Court remarked on and emphasised the onus on employers to accommodate their employees who have suffered an injury or who have contracted work-related illness. In this case, the employee, Pieter, was employed for almost 20 years, working in the company’s foundry. He was exposed to dust and over the years developed a chronic lung condition. Pieter had submitted a medical note from a doctor stating that he could no longer work in his current position due to the illness. The company resorted to dismissing Pieter based on his permanent disability. The Court found that although Pieter was not capable of remaining in his previous role, he was not unfit to render services altogether. This, the Court stated, should have prompted the employer to seek alternative positions in an environment that was less noxious. The Court held that due to Pieter suffering from an occupational disease which he developed as a result of his work, the employer was under a stricter obligation to find an alternative role for him.

Practical Steps for Employers

In the event that an employee is injured during the course and scope of their employment and the execution thereof, the Compensation Fund’s Injury on Duty Reporting Process should be followed in dealing with the situation. It provides a detailed breakdown of the steps to be taken by both the employee and the employer in the face of such an eventuality.

Employers should ensure that they implement best practices and provide for procedures in the workplace to monitor and manage workplace safety. An injury or illness arising from the workplace should be avoided as both the employer and the employee could face consequences should it be found that either did not follow the correct health and safety protocol.

Written by Nduduzo Sithole