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Case-Law & Legislation Review: Management Of Incapacity Due To Ill Health

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Management Of Incapacity Due To Ill Health: By Xolani Matyolo, Perrott, Van Niekerk & Woodhouse Inc.

The full edition of this newsletter may be read at www.elaw.co.za  or www.caselaw.co.za 

This is a discussion of the award in National Education Health and Allied Worker's Union ("NEHAWU") on behalf of Lucas and the Department of Health (Western Cape [2004] 25 ILJ 2091 (BCA).

In this matter the Applicant had been employed as a general worker in the nursing department of the hospital operated by the Department of Health. After being injured on duty she could no longer be able to bend or lift heavy objects and was transferred to the clerical department while she was being assessed. She did not cope well there the other employers were unhappy that her work output was low and that she received special treatment. After an unsuccessful application for a more senior administrative post her superintendent applied for her discharge for incapacity in terms of the Public Service Act 1994 but the department required that she be assessed by a specialist and by an occupational therapist.

She was "advised" by her union and refused to be seen by the occupational therapist. Subsequent thereto her employment was terminated for incapacity due to ill health or injury. The Department's code incorporated the Labour Relations Act Code of Good Practice and the employer purported to have complied with the terms of items 10 and 11 thereof.

In determining the fairness of the dismissal the arbitrator noted that the Code of Good Practice in the Employment Equity Act 55 of 1998 was far broader than the Labour Relations Act Code in respect of impairments that amounted to a disability. In that, where impairment amounted to a disability under the Employment Equity Act the employer was entitled to reasonable accommodation. The arbitrator adopted a purposive approach that the general objective of the statutory arrangements in both the LRA and the Employment Equity Act was to promote procedural and substantive fairness in relation to people with disabilities and to encourage employers to keep people with disabilities in employment if there is good reason to be accommodated. The arbitrator was of the view that the general concept of fairness required an employer to consider whether a particular employee was a person with disabilities under the Employment Equities Act in determining whether there was a sufficient, valid and fair reason to terminate employment. The arbitrator's view was that even in circumstances where the employee had not specifically sought special treatment with reference to the Employment Equity Act and claimed the status of the person with a disability, The above ought to be taken into consideration. The Arbitrator made a point that disability status is not to be considered only as a weapon to claim special treatment under the affirmative action provisions in chapter 2 of the EEA but that it should also be considered as a shield to protect the person who has a disability from being dismissed from employment for a reason related to that disability.

In this case it was common cause that the employee lived with incapacity on the grounds of ill health or injury within the meaning of item 10 of the Labour Relations Code. After considering the evidence the arbitrator however found that she also fell within the definition of people with disabilities as defined in the Employment Equity Act. On perusal of the evidence it was found that the employer had attempted to accommodate the employees disability in terms of Section 10 in terms of the Labour Relations Act rather than as an employee with a disability in terms of the Employment Equity Act. The arbitrator considered which procedure would have produced a substantively fairer outcome for the Applicant and concluded had the parties followed the Employment Equity Act Code and the Technical Assistance Guidelines on the employment of people with disabilities at an early stage they all would have informed themselves, worked together and identified possible accommodation.

Having considered the extent of the employer's duty to make reasonable accommodation for the employee, the arbitrator found insufficient evidence that the employer had considered any reasonable accommodation in relation to this rule or the nursing department but all in relation to a clerical job for which she was in any event not qualified. What this means is that more than only looking at alternatives, the employer must also try and "create " a suitable role for the ill employee.

What this award raises is that compliance with the Labour Relations Act Code may not be sufficient in instances where ill health leads to disability. The LRA Code requires employers to look for suitable alternatives adapt the employee's current role where possible to accommodate the employee's circumstances. With the general notion being that if the employer complied, the termination is viewed as being fair both substantively and procedurally. Under the Employment Equity Act Code however and in particular item 11 which is a guideline on retaining people who became disabled during employment, employers are required to assess if the disability can be reasonably accommodated and the employer is enjoined to explore the possibility of alternative reduced work or flexible work arrangements.

The technical assistance guidelines on the employment of people with disabilities have been published and require the employer to engage in the various steps viz. clarification of work limitations; development of job modification; return to work options etc.

This requires that there should be consultation with employees and that supervisors must feel comfortable and ensure that they understand the nature of the employee's work limitations and that both parties must have a stake in the success of any job modification and all return to work plans.

What this entails is that the employer together with the affected employee need to look and investigate the ways of modifying the work environment and investigate whether or not there are any other ways in which the work can be done moving away from the traditional ways in which specific work had been done. It is submitted that this imposes a much more onerous duty and has the effect of broadening the employer's requirements for fairness in circumstances of ill-health terminations.

It is suggested that employers should familiarise themselves with the Employment Equity Act Code and indeed the technical assistance guidelines when dealing with and indeed managing ill-health incapacity. It is also advised that even when the process has been followed to the latter, it is important to hold "that last meeting " to hear the employee out before a notice of termination is given.

 

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