HR Article by Nikita Pillay
Incapacity: Medical boarding due to ill-health
Medical boarding is the inability of an employee to work according to the requirements of his/her job as a result of ill-health or injury. This is also known as “no fault dismissals” as the employee is not to blame for such a dismissal.
When employees are no longer able to carry out their employment obligations due to the above, and alternative work arrangements are not feasible, they may be eligible for medical boarding. An employer intending to dismiss an employee due to incapacity must do so in accordance with Item 10 and 11 of Schedule 8 to the Labour Relations Act, No 66 of 1995 (LRA), failing which, the fairness of such dismissal falls to be challenged.
Employer duties prior to dismissal
In terms of items 10 and 11, an employer has the following duties prior to dismissal of an
employee on the grounds of incapacity, namely:
1. Investigate the extent and cause of injury/incapacity/illness (ie. nature and cause)
2. Establish the length of the employee’s absence from work – it is inappropriate to dismiss an employee that is only temporarily incapacitated (ie. likelihood of recovery/seriousness of injury/illness)
3. Provide the employee with the necessary assistance in order to perform his/her duties
4. If possible, accommodate the employee in a suitable position – an employee’s status and remuneration may alter (ie. alternative employment).
Must be fair reason and procedure followed for dismissal
If after investigation and assessment, as set out above, the employee is still unable to carry out
his/her work obligations and an alternative position is not feasible, the employer may give
reasonable notice to the employee and have him/her medically boarded.
It is clear that an employer may only follow the dismissal route as a last resort once all reasonable alternatives have been considered and proven to be unsuccessful.
In order to substantiate dismissal due to incapacity, an employer must ensure that there is a fair
reason for the said dismissal and that a fair procedure has been followed in implementing the
dismissal, otherwise the dismissal may result in being substantially unfair.
Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal.
Items 10 and 11 of the Schedule provides as follows:
"10: Incapacity: ill-health or injury
(1) 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. When alternatives are considered, relevant factors might 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 ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.
(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.
(4) Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
11: Guidelines in cases of dismissal arising from ill-health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should
consider:
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable:
· the extent to which the employee is able to perform the work;
· the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and
· the availability of any suitable alternative work".
Incapacity Hearing
The above means that before the employer takes the decision to dismiss an employee due to
incapacity, such employer must undertake an incapacity enquiry aimed at assessing whether the employee is capable of performing their duties, be it in the position they occupied before the enquiry or in any suitable alternative position.
A conclusion as to the employee's capability or otherwise can only be reached once a proper
assessment of the employee's condition has been made.
In considering whether or not to dismiss an employee due to ill-health, the employer must take
note of the following:
• a thorough assessment of the employee's impairment must be conducted and;
• all alternatives must be exhausted.
Permanent or continued incapacity arising from ill-health or injury may be recognised as a
legitimate reason for terminating an employment relationship. An employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. A dismissal in these circumstances may be fair, provided that it was based on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.
Ill-Health Benefits at UIF – Department of Labour
You can apply for illness benefits at your nearest Department of Labour if you are an employed
contributor to the Unemployment Insurance Fund (UIF) and unable to work because of illness.
You can qualify for the benefits whilst still employed however you must be receiving less than your normal wages while you are on sick leave, and be able to provide medical reports to substantiate such illness.
Upon termination of your employment due to ill-health, you can proceed with a claim as well,
provided you are able to meet requirements set by the Department of Labour.
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