MEDICAL BOARDING: CHECKLIST for UNFAIR DISMISSAL – ILL HEALTH INCAPACITY

 

THE LRA GUIDELINES ON ILL-HEALTH INCAPACITY

Schedule 8 of the Labour Relations Act (the “LRA”) provides Guidelines of the factors which CCMA and Bargaining Council Commissioners must consider when making decisions on the fairness of dismissals for medical boarding in South Africa, i.e., ill-health incapacity.  These are summarized as Checklists of questions to consider when preparing to make a claim or to defend a dismissal for ill-health incapacity in an arbitration.

 

GENERAL PRINCIPLES: MEDICAL BOARDING & DISMISSAL

No Fault Dismissal

Dismissal for ill-health incapacity is a no-fault category of dismissal. It’s therefore inappropriate for an employer to “discipline” an employee for being sick or injured. The effect of this would be to blame the employee for being unable to perform the work because of a physical or mental disability.

The incapacity may be temporary or permanent. Either way, it’s pointless to use the disciplinary procedure or to issue a “warning” to get better or be dismissed. These cases call for a different process – one that’s compassionate. The process is called the counselling procedure. Its purpose is to assist the employee to recover and to get back to productive work as soon as possible.

 

Temporary Incapacity

If it’s a temporary condition – the employer should consult with the employee to find out what treatment is needed and how long it could take to recover. The employee should be allowed reasonable time off for medical treatment and recovery time. The time off should be paid sick leave for whatever days are due to the employee. The employer could agree but is not obliged to a longer paid or unpaid time off after the employee’s sick leave has been exhausted.

The employer is not expected to keep the employee indefinitely beyond a reasonable period. What is reasonable will depend on the facts of each case.  If these efforts don’t succeed, the employer can terminate the employee’s employment for ill-health incapacity. The employer should pay contractual notice pay plus an extra discretionary goodwill payment.

 

Related:

HELPING HAND: How far should an employer go to help and accommodate an ill or injured employee?

 

Permanent Incapacity

If it’s a permanent condition and the employee is still able to work, the employer should look for ways to accommodate the employee’s particular disability in order to avoid medical boarding. This may include finding ways of adapting the workplace to accommodate an employee who has been disabled by injury or illness so he or she can continue working productively.  For example, to provide wheel-chair access to the workplace if the employee is unable to walk.

If it’s not financially or practically possible to accommodate the employee, the employer should consider the option of early ill-health retirement if its available. If not, the employer can terminate the employee’s employment for ill-health permanent incapacity.

As with temporary incapacity, the employer should pay contractual notice pay plus an extra discretionary goodwill payment which may be a little more than for temporary incapacity.

 

CHECKLISTS

1. PROCEDURAL FAIRNESS FOR ILL-HEALTH INCAPACITY

1.1          Pre-Enquiry Ill-health Counselling

• Did the employer conduct an investigation?
• Did the investigation reveal the extent and prognosis?
• Did the employer consider ways to adapt the employee’s duties?
• Did the employer consider ways to adapt the employee’s workplace?
• Did the employer consider other options to accommodate employee?
• Did the employer consider other alternatives to dismissal?

Before deciding to convene a hearing, did the employer consider –

• the nature of the job
• the period of absence
• the seriousness of the illness
• the possibility of securing a temporary replacement
• the possibility of extended ill-health leave
• the possibility for medical boarding

Did the employer give reasonable support and assistance to the employee?

1.2          Ill-Health Hearing           

• Who chaired the hearing?
• Was the hearing chair neutral?
• Was the employee reminded of his rights?
• Was the employee able to state his case?
• Was the employee notified of the outcome?
• Did the employee appeal?
• What was the appeal outcome?

 

2. SUBSTANTIVE FAIRNESS FOR ILL-HEALTH INCAPACITY

• Was the employee proven to be medically unfit?
• Was the employee still capable of performing his duties?
• What was the extent to which he is unable to perform?
• Was the diagnosis of the employee’s condition accurate?
• What were the employee’s prospects of recovery?
• How long was the employee absent for health reasons?

 

3. APPROPRIATENESS OF DISMISSAL FOR ILL-HEALTH INCAPACITY

• Did the employer explore alternatives?
• We’re there any viable alternatives?

 

4. POST DISMISSAL FOR ILL-HEALTH INCAPACITY

• Did the employee get a written outcome with reasons?
• Did the employer assist the employee with UIF?
• What final payment was made?
• Was a letter of service issued?
• Did the employee communicate post-dismissal?

 

5. OTHER RELEVANT INFORMATION FOR ILL-HEALTH INCAPACITY

• Employer business profile and operations
• Nature of the employee’s job and performance requirements
• Policy on managing Ill-Health cases
• Possible consequences of continued employment despite ill-health.

6. BUNDLE OF DOCUMENTARY EVIDENCE

CHRONOLOGY & DOCUMENTS

[Notes:                  Add others as necessary in date sequence. For multiple pages in doc, use – D1.1, D1.2 etc.]

Documents              

 

Dates	Item	Documents	Page Number
	Employment	Employment contract
	Nature of ill-health	Medical Reports
	Pre-Enquiry Counselling	Minutes & correspondence
	Notice of Hearing	Notice to Attend &
	Nature of hearings	Attendance record, notices, etc.
	Findings of hearing	Written findings
	Written findings	Factors considered
	Dismissal	Written notice and reasons
	Appeal	Notice of Appeal
	Final outcome	Written outcome
	CCMA referral	Form 7.11 Referral of Dispute
	CCMA hearing	CCMA Notice of Set-Down

 

Correspondence [Note: Letters, emails, memo’s etc.]

Date                      Description                                                                                                        .

[Example –         

12.08.17               Letter from Ajax (employer) to Smith (employee)

15.08.17               Email string between Ajax and Smith to 22.08.20

 

You may also be interested in:

• Unfair Dismissal in South Africa: Checklists for Misconduct Cases 
• DOUBLE DIPPING: Can an employee claim compensation for unfair dismissal and unfair discrimination in the same case?

 

 

Patrick Deale

labour lawyer, labour arbitrator & commercial mediator

DEALE ATTORNEYS

Tel: 083 375 8771

Email: [email protected]

Web: www.deale.co.za