By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.
It is a major challenge for employers to distinguish between employees who are genuinely sick from those who are malingering. The Labour Relations Act (LRA) requires that employers may consider dismissing employees incapacitated by illness or injury only as a last resort. While every employer is expected to go the extra mile, the larger and stronger the employer is, the more it will be expected to do to accommodate the employee.
For example, in the case of Standard Bank of SA vs CCMA (2008, 4 BLLR 356) the employee, after 15 years of loyal and exemplary service, was injured on duty. The damage to her back made it impossible for her to carry on with her normal duties. The employee was eventually dismissed for incapacity, but this was after a long period during which the employer made a continued efforts to accommodate the employee including the following:
- The bank got advice from a doctor on how to help the employee.
- It looked for and found a series of alternative positions for the employee.
- Even though the alternative posts were more junior than her original job the bank did not reduce the employee’s pay.
- When the employee was in pain her boss would send her home for the day
- The bank gave the employee three extra months’ paid recuperation leave.
All of the above did not satisfy the Court because the employer had failed to:
- Act on the medical practitioner’s recommendation to get advice from an occupational therapist on how to accommodate the employee.
- Give the employee a telephone headset and a comfortable chair to assist her to work with less pain.
- Allow the employee to do the job of entering computer data out of fear that her medication might interfere with her concentration.
- Consider the employee’s request to work half day.
- Allow the employee to state a case before dismissing her.
- Consult technical experts before taking the dismissal decision.
The Court concluded from the above that the employer had not really wanted to keep the employee in its employ. It was acknowledged that the employer had genuine problems in keeping the employee on in its employ because:
- The employee had been absent for 74 days in one year and 116 days in the following year.
- The employee admitted that she struggled to cope with the alternative jobs.
- The employee often needed to go home early due to pain.
Despite the above the Court found that:
- The bank would have been able to accommodate the employee because the cost of doing so would have been affordable for the bank.
- The employee’s inability to cope with the new work was partly due to the employer’s reluctance to give her headphones and a comfortable chair.
The Court therefore found that the dismissal was unfair and that the bank had discriminated unfairly against the employee. This outcome confirms that any employer in such a situation must:
- Try to change the physical workstation of an injured employee if such injury interferes with the employee’s ability to work.
- Try to change the employee’s tasks.
- Consult with the employee on these matters before dismissing him/her.
- Obtain and carry out the recommendations of medical experts unless it can prove that this is truly not viable.
- Before deciding that nothing more can be done to save the employee’s job, get advice from a reputable labour law expert.
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