We generally treat sick or injured people with a little more compassion than others. Labour Law reflects a similar sentiment in various laws. They are designed to protect ill or disabled employees from mistreatment at the hands of their employers.
The Code of Good Practice on Disabilities sets out very specific guidelines on measures an employer must consider to make reasonable accommodation for a disabled employee. They include adapting the working environment and the way in which the work is done.
The Labour Court has indicated that it expects a lot of effort from an employer in a case where the employee is disabled. In a recent Standard Bank case, the employee was injured at work and could no longer perform her normal duties. After an extensive counselling process the employee was dismissed for incapacity. The CCMA found the dismissal unfair but the Bank went on review.
The Labour Court considered everything the Bank did to try and accommodate the employee. It noted that the Bank –
- Got advice from a doctor
- Looked for and found various alternative jobs
- Did not reduce the employee’s pay even though the alternatives were more junior
- Sent her home when she was in pain
- Paid an extra three months leave for her to recuperate
Despite these efforts, the Court concluded it was not enough because the Bank had failed to –
- To consult an occupational therapist on possible ways to accommodate the employee
- Give the employee a phone headset and a comfortable chair to ease the pain
- Allow the employee to do data capturing because her medication might reduce her concentration
- Consider the employee’s request to work half-day
- Allow the employee to state a case before dismissing her
And this was even though the employee had been absent for 74 days in one year and 116 days in the next. She also admitted she could not fully cope with the alternative jobs and often needed to go home early because of the pain
The Court found the dismissal for incapacity was unfair and that the Bank had discriminated unfairly against the employee because –
- The bank would have been able to accommodate the employee and could afford to
- The employee’s inability to cope with the alternative job was partly because of the bank’s reluctance to give her headphones and a comfortable chair.
TIP: It will be evident that the courts will expect more from an employer, especially a large one with a lot of resources, to go to the N’th degree to try and accommodate an ill or injured employee so he or she can stay employed. An employer should consider consulting an occupational therapist or other health specialist to assess the situation and to made recommendations on whether it is possible to make reasonable accommodation for the employee.
 Employment Equity Act No 55, of 1998
 Standard Bank of SA vs CCMA (2008, 4 BLLR 356)
Source: Article by Ivan Israelstam in Legal Times October 2016