How to end the employment relationship in a fair manner where the employee is unable to work due to sickness 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. Serve the employee with a notice to attend an incapacity hearing.
2. Arrange a venue and inform relevant persons of the need to attend the incapacity hearing (for example a manager or supervisor).
3. Advise the employee that s/he may bring a representative to the hearing. This may be a fellow employee or a trade union representative (shop steward). Assistance by a trade union representative only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is 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 as an interpreter.
5. State the purpose of the hearing and how it will run.
6. Go through the previous consultation(s), adaptations and commitments made and steps taken to assist the employee.
7. Highlight ongoing short-comings.
8. Provide evidence to support steps that the employer has taken to accommodate the employee – avoid general observations.
9. Explain how the employee’s illness and inability to perform normal duties jeopardise business success and has impacted on the workplace, other employees and related entities.
10. If witnesses are called, allow the employee and his/her representative the opportunity to put questions to the witness.
11. Give the employee / representative the opportunity to respond and make suggestions, and if required, to call witnesses.
12. Adjourn the hearing and consider the submissions that were made and make a decision.
13. If a decision is made to dismiss the employee, reconvene the hearing and advise the employee of the outcome.
14. Advise the employee of the decision to dismiss and explain why the decision was reached.
15. Advise the employee if his/her right to refer the dispute to the CCMA or a bargaining council.
16. Provide the employee with a decision in writing.