The recent outbreak of the COVID-19 virus may be a concern for employers as companies may have contractual obligations such as the supply of products, completion of works or provision of services that must be completed within strict timelines. Employers must be aware of the onerous requirements that need to be met for the dismissal of employees on the ground of incapacity due to ill health (“Dismissal”).
Dismissal of due to ill health:
Dismissals would have to comply with the requirements set out by the Labour Relations Act No. 66 of 1995 (“Labour Relations Act”) for the Dismissal to be considered fair.
The Labour Relations Act provides for 3 (three) instances in which a Dismissal will be considered fair, namely –
- operational requirements; and
An employee may therefore be dismissed on the ground of incapacity due to ill health. Should an employee be temporarily unable to work, an investigation on the extent of the incapacity will have to be conducted by the employer. Should the employee be likely to be absent from work for a period that is unreasonably long given the circumstances, the employer is obliged to investigate all possible alternatives to Dismissal taking into account the following factors –
- nature of the job;
- period of absence;
- seriousness of the illness; and
- possibility of securing a temporary replacement for the employee.
The employee is entitled to participate in the abovementioned investigation by being provided an opportunity to state his/her case and be assisted by a trade union representative or another employee.
In order to ensure the Dismissal is fair, the employer must determine –
- whether the employee is capable of performing the work; and
- in the event the employee is not capable of performing the work –
- the extent to which the employee is able to perform the work;
- the extent to which the employee’s work circumstances can be adapted or the extent to which the employee’s duties can be adapted; and
- the availability of suitable alternative work.
Should the employee be incapable of performing the work and his/her work circumstances or duties cannot be adapted and there is no alternative work available, the Dismissal may be fair provided the employer has conducted the abovementioned investigation and has provided the employee with an opportunity to state his/her case.
Take note that the onus on the employer to accommodate the incapacity of an employee is more onerous in relation to employees who are incapacitated by work related illness. An illness contracted in the workplace may place such an onus on the employer.
An employee may indeed be dismissed on the grounds of incapacity due to ill health (which may arise as a result of the COVID-19 virus), however employers who consider Dismissal are advised to first review the employment agreement entered into with the employee and thereafter consider all substantive and procedural requirements for Dismissal due to ill health and exhaust all possible alternatives to Dismissal prior to proceeding with Dismissal, as required by the Labour Relations Act. Failure to do so by an employer may result in the unfair dismissal of an employee.
Published: 10 March 2020