How to end the employment relationship in a fair manner where the employee is unable to work due to illness or injury

Where an employee is unable to work due to ill health or injury an employer is required to meet and consult with the employee in order to investigate and discuss the employee’s sickness or injury to determine the nature and extent of it and consider alternatives to accommodate the employee.

For guidelines on how to manage this process, see the guide on “how to manage the employment relationship in a fair manner where the employee is unable to work due to sickness or injury.”

Should the employee not manage with the measures that the employer has implemented to accommodate the employee, and the employer is satisfied that it has done everything reasonably possible to assist the employee, the employer may convene a final hearing to address the situation and to make a final decision as to the way forward.

Prior to convening a final hearing to consider whether or not to terminate an employee’s services for incapacity related to illness or injury, an employer should consider the following factors:

• Has the employer considered and implemented all reasonable alternatives in order to accommodate the employee’s inability to perform due to illness or injury?
• Have the measures that have been implemented to accommodate the employee not worked well enough for the employee or caused unreasonable hardship to the employer?

If the answer to these questions is ‘yes’, an employer should convene a final hearing.

How to conduct a fair hearing in respect of an employee who is unable to work due to sickness or injury:

1. Arrange a chairperson and suitable hearing venue and notify relevant participants. The chairperson’s duty is to evaluate the alleged incapacity by listening to the employee’s supervisor/manager and the employee, then determine if the employee can’t work due to ill health or injury. Large companies often have designated chairpersons, while smaller businesses may have the owner assume this role in addition to providing evidence regarding the employee’s incapacity.
2. Give the employee a notice to attend an incapacity hearing.
3. Advise the employee that s/he may bring a fellow employee as a representative to the hearing.  Assistance by a trade union representative (shop steward) only applies if a registered trade union has been granted the right to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist the employee in his/her capacity as a fellow employee.
4. Should the employee require the assistance of an interpreter, advise the employee that s/he may bring a fellow employee to the hearing to assist.
5. At the start of the hearing ensure that the employee is aware of and understands the purpose of the incapacity hearing.
6. Explain how the hearing will be conducted.
7. The supervisor/manager should present details, together with evidence, relating to the extent to which the employee can’t perform the work, previous consultation(s) with the employee, adaptations and commitments made as well as steps taken to assist the employee. The supervisor/manager should
   explain how the employee’s inability to perform normal duties affects the business and the impact on the workplace, other employees and related entities or parties, for example customers, clients, or suppliers. The supervisor/manager may call witnesses.
8. The chairperson should consider submissions concerning the potential for reasonable accommodation of the impact that the ill-health or injury has had on the employee’s capacity to perform his/her job.
9. The employee and his/her representative must be given the opportunity to respond and, if required, call witnesses.
10. If witnesses are called, allow the supervisor/manager and the employee and his/her representative the opportunity to question the witness.
11. Adjourn the hearing to consider the information and evidence presented during the hearing and make a decision.
12. Once a decision is made, reconvene the hearing and advise the employee of the decision.
13. If the decision is to dismiss the employee explain why this decision was reached and advise the employee of his/her right to refer an unfair dismissal dispute to the CCMA or a bargaining council within 30 days if he/she believes the dismissal is unfair.
14. Provide the employee with the decision in writing.