Incapacity due to ill heath
Overview:
The Commission for Conciliation, Mediation, and Arbitration (CCMA) recently arbitrated an unfair dismissal dispute between Ms. Refilwe Matinkentsa (“the employee”) and Dis-Chem Pharmacies Ltd (” the employer”). The employee claimed she was unfairly dismissed for incapacity on the grounds of ill health on 4 July 2024.
In the referral for arbitration, the employee alleged that she was not afforded a chance for a hearing by the employer and that she was not offered an opportunity to be employed in an alternative position.
Background to the matter:
The employee started working as a checker for Dis-Chem during or about March 2019. In 2022, she developed health issues related to cancer, which caused her to miss work frequently. To support her, the employer placed her on temporary disability. Around October 2023, the employer learnt that the employee was in remission from Cancer and was ready to return to work. Following the news of the Cancer’s remission, on 23 November 2023, a meeting was held to discuss the employee’s return to work, wherein the employee affirmed that she was prepared to resume her duties, and a return date of 1 December 2023 was agreed upon.
The employee would be retained as a Picker in order to re-induct her into the business. She arrived on 1 December 2023, but was unable to complete her shift due to physical limitations. She claimed that the hard lifting prevented her from picking, as her condition had resulted in a stoma, which prevented her from bending over or stretching and as such she was no longer able to perform the task physically.
The employee was then placed in a temporary role as a Checker. It was only to make room for her, in the hopes that she would become well enough to return to her previous role. The employer even encouraged her to get medical guidance on what to do next, and she was placed on light duty. She could not manage the light duties as checker but despite this, she demanded to be further accommodated.
The arbitrating commissioner concluded that the employee was unfit to carry out her duties as a picker based on the evidence that was provided at the arbitration and the doctor’s diagnosis. The presiding commissioner stated: “The evidence is clear on both her own version and the doctor’s prognosis that she could not perform the duties of a picker any longer. She was only supposed to be temporarily accommodated as a packer with the idea that she could recover enough to return to her picking duties. She was not even able to perform her light duties and confirmed she was unable to meet the targets.”
The commissioner was satisfied that the employer accommodated the employee for a lengthy period of time and there were no reasonable alternatives. The medical prognosis was that her incapacity to perform her usual duties would be permanent and the employer was left with no choice, but to terminate the employee’s employment.
The Commission for Conciliation, Mediation and Arbitration (CCMA) thus ruled in the employer’s favour.
Important learnings:
In light of the above, it is important to remember that the Labour Relations Act 66 of 1995 (“LRA”) mandates that an employer must follow Schedule 8 item 10 and 11 if it seeks to dismiss an employee for incapacity; otherwise, the dismissal may not be deemed fair. The Code of Good Practice for dismissals is contained in Schedule 8 of the LRA. Only after a thorough evaluation of the employee’s condition can a determination be made on the employee’s capacity. Illness or injury resulting in permanent or ongoing incapacity may be accepted as a legal basis for ending an employment relationship. If a thorough inquiry was conducted to determine the full extent of the incapacity and alternative options were considered, a dismissal under these circumstances may be fair.
