Sick employees can be a headache

By lvan lsraelstam, chief executive of Labour Law Management Consulting

Employees who are sick or disabled are well protected by law. They cannot be disciplined for their incapacity (sickness/disability) even if this has been brought on by their own actions. For example, an employee who drinks excessively and becomes an alcoholic is legally classified as being ill and is protected by law.

Section 187(1)(f) of the Labour Relations Act  (LRA) says that, “A dismissal is automatically unfair if …. The reason for the dismissal is …. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground….”

This means, for example, that if your production manager is permanently paralysed from the waist down in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled manager will be unable to command the respect of the workforce. You would have to prove that this production manager is in fact unable to work before you could even consider terminating his/her employment.

In the CCMA case of Truter vs Mechem (GA865) the employee promoted to the position of logistics manager after which she was involved in a serious motor accident that necessitated brain surgery and left her with speech difficulties. The employer terminated her services while she was still in hospital claiming that her contract had expired. The arbitrator believed that the real reason for the dismissal was the employee’s accident and awarded the employee eight months’ salary in compensation for the unfair dismissal.

In the case of Black Mountain vs CCMA and others (2005 1 BLLR 0001) the employee was found guilty of causing damage to the employer’s property while driving under the influence of alcohol. The employee was dismissed and referred an unfair dismissal dispute to the CCMA as he believed he should have been sent for alcoholic rehabilitation instead of being fired. The CCMA arbitrator agreed and overturned the dismissal. The employer applied to the Labour Court for the arbitrator’s decision to be reviewed. However, the Labour Court, after looking at the employer’s policy in regard to alcohol related infringements, decided that:

  • The employee had been wrong in what he had done
  • The employer should have allowed the employee to go for rehabilitation
  • The dismissal was unfair
  • The employer was required to reinstate the employee and to give him back pay for a period of 18 months
  • The employer was to pay this money to the employee with interest

The above cases make it clear that:

  • Sick employees are strongly protected from unfair treatment aimed at their disabilities
  • Alcohol abuse can be seen as an illness in South African law
  • Employers are legally required to adhere to their own policies
  • Treatment must be considered before dismissal of a sick employee can be considered

Therefore the wise employer will:

  • Explore every alternative to dismissal before considering terminating the employment of a sick employee;
  • Genuinely and thoroughly involve the incapacitated employee in the process of consideration of alternatives giving the employee ample opportunity to state his/her case;
  • Formally place on record every step taken in the above process;
  • Ensure that the entire process is planned and managed by an expert in labour law and industrial relations

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