There are two recognised types of incapacity in the Labour Relations Act:
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Poor performance (incompetence)
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As a consequence of ill-health or injury (temporary or permanent)
Incapacity counselling should be embarked upon if the employee does not have the ability to perform at the required standard – either in respect of skills, competence, knowledge, experience, or in respect of ill health. This is not a disciplinary process incapacity is a “no fault” process.
With respect to incapacity due to a medical condition, the employer has a duty to investigate the extent of the incapacity. Once the employer begins to consider termination, it must subject the employee to medical examination aimed at establishing the employee’s ability to resume work in the foreseeable future.
With respect to poor work performance, the employer is required to make reasonable efforts in assisting the employee to improve. An employee will typically be placed on a performance improvement plan and have specific performance targets for the duration of the performance improvement plan. At the end of that period, an appraisal of the employee’s performance must be conducted before termination proceedings are considered.
In addition, the employer is required to consider all possible alternatives before dismissing an employee on grounds of incapacity. Only if there is no alternative to dismissal can the employer go ahead and dismiss the employee.
Are there any benefits payable in the event of a dismissal for Incapacity? Yes, an employee dismissed on grounds of incapacity is entitled to:
- Salary and bonuses up to the date of termination
- Accrued leave up to the date of termination (if any)
- Gratuity pay (optional)
- A notice of termination
- A termination letter
- A certificate of service
