Item 10 of Schedule 8 in the Code of Good Practice: Dismissal draws a distinction between a permanent and temporary incapacity as follows:
Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal.
The specific circumstances of each case must be considered to determine the fairness of dismissal. The first step is to determine whether the injury/illness is temporary or permanent. The opinion of an expert may be necessary to determine the seriousness of the incapacity (e.g. loss of eyesight or hearing), as well as the likely period that an employee may be absent for (e.g. in the case of cancer or tuberculosis).
When deciding how long a ‘reasonable period’ is (and reviewing the alternatives at a later stage), the employer must consider the following aspects:
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The nature of the job.
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The period of absence.
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The seriousness of the illness/injury.
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The possibility of a temporary replacement.
The absence does not have to be continuous and includes recurring periods of absenteeism.
Temporary Incapacity
If an employee’s illness or injury is only temporary and likely to be of short duration, dismissal is not possible for that reason alone. Such a situation will require that:
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The employer investigates the severity of the incapacity.
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The employee is given an opportunity to state his/her case during the investigation and to be assisted by a trade union representative or a fellow employee.
Based on the outcome, the employee should be allowed to take paid or unpaid sick leave in order to receive appropriate treatment and to recuperate. Sick leave will be unpaid if the employee has exhausted his/her paid sick leave entitlement.
When the employee’s incapacity is likely to be permanent (thereby making continued employment in the current role impractical), dismissal is possible only as a last resort.
The Code requires the employer to first consider all reasonable ways in which the employee’s employment may be preserved. This may include:
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Finding alternative employment for the employee (albeit at a lower level and pay).
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Adapting the duties or work circumstances of the employee to accommodate the disability/illness.
Dismissal
Employers are often faced with employees who are unable to perform their duties in terms of their contract of employment due to ill-health or injury. Therefore, knowing the difference between temporary and permanent disability is important.
The situation is not the employee’s fault. Employers cannot just dismiss an employee on the grounds of incapacity without a proper investigation being conducted.
