Study Unit 5.

4
Incapacity as ground for dismissal
1. Define concepts “incapacity due to poor work
performance” and “incapacity due to ill
health”
2. Explain the procedure in each of the categories
3. Indicate difference between misconduct and
these cases
4. Explain when dismissal will be fair under these
circumstances
5. Apply to case studies

Study Outcomes 2
1. Incapacity 2nd ground for fair dismissal
2. Divided in two categories:
a) Incapacity due to poor work performance
b) Incapacity due to ill health or injury
3. "No-fault” dismissals
4. Item 8 – 11 of the Code of Good Practice:
Dismissal NB here!

Dismissal due to incapacity 3

Item 8 of Code of Good Practice
distinguishes between probationary
employees and those employees who are
past probationary period

Poor work performance (Item 8 & 9) 4

1. Probationary employees
(Item 8(1), 8(3) & 8(4))

a) Employee proves himself

b) Employer prohibited from abusing probation period – How do they
abuse it?
c) Employee assessed with proper guidance, training and instructions
d) Employee receives notice of specific poor standard
e) Reasonable chance to improve
f) VLC Properties v Olwyn
g) Wilson and Nambiti Technologies 2012 33 ILJ 769 (CCMA)

Poor work performance (Item 8 & 9) 5

A potential employee applies for a job as mechanical
engineer. The employer appoints him for a three month
probation period. The employee recently received his
diploma and has no job experience, yet he received no
guidance from someone in the workplace. Within the first
three weeks of the employee’s probationary period the
employer receives various complaints from co-workers as
well as clients regarding the work of the employee. The
employer calls him into his office and simply informs him
that his standard is lacking and that he should improve.
Two days later the employer receives another complaint
and decides to terminate the employee’s employment.

Poor work performance (scenario) 6

2. ‘Tenured’ employees
(Item 8(2)-(4))

a) Employer investigate standard of work performance

b) Issue warnings
c) Poor standard not necessarily have its origin in employee
d) Beyond employee’s control? Be more sympathetic.
e) Assess employee's services
f) Investigation should be fair
g) How can the employee be helped? Guidance, training, alternative position.
h) A-B v SA Breweries
i) Brodie v CCMA 2013 34 ILJ 608 (LC)
j) Damelin v Solidarity obo Parkinson

Poor work performance 7

Donovan is a tenured employee at a factory for the past 10 years. A wide
variety of products are manufactured at this factory, from bicycles to baby
cribs. Donovan works specifically in the department that makes cricket bats.
Certain parts of the bats have to be carved by hand, something Donovan is
very good at. One day the employer installs a machine in the factory that
would take over this task – Donovan only has to ensure that the machine
works smoothly and does not get backed up. Donovan however has trouble
with the machine because he was only handed a badly translated manual on
how the machine operates, which consequently holds up the production line.
The employer noticed that Donovan's effectiveness has diminished and
called him into his office to find out what was going on. Donovan said that
he struggles with the machine, but the employer just referred him to the
manual and warned him that he should improve. A month later, and after
multiple attempts, Donovan has still not improved, which led to him being
called back into the employer's office to be informed of his dismissal. The
employer basis the dismissal on poor work performance.

Poor work performance (scenario) 8

Item 9:

Any person determining whether a dismissal for poor work performance is unfair
should consider-

(a) whether or not the employee failed to meet a performance standard; and
(b) if the employee did not meet a required performance standard whether or
not-

(i) the employee was aware, or could reasonably be expected to have

been aware, of the required performance standard;
(ii) the employee was given a fair opportunity to meet the required
performance standard; and
(iii) dismissal was an appropriate sanction for not meeting the required
performance standard.

Poor work performance 9

1. Determine nature and seriousness of incapacity

a) Item 10 & 11 NB!!

b) Employer must follow the elements in these items
carefully
c) Employer should thus determine level of incapacity
and first consider accommodation where possible

Ill health or injury 10

2. Seriousness of incapacity
a) Absence for short period – dismissal inappropriate
b) Repeatedly absent over a long period
c) Dismissal justified for habitual absence – even for
medical reasons
d) Absence should be unreasonable
e) Reasonability determined by circumstances – nature
of employee’s work, period of service etc.

Ill health or injury 11

 
A fireman who plays rugby for a club in his free time, tears a
ligament in his foot during a game. The doctor sends him
home for two weeks and says that he may not put any weight
on the foot. Due to the nature of his work the doctor
recommends that he should not do any strenuous work for at
least six weeks after he returns to the fire house. The chief of
the fire department is of the opinion that the injury
incapacitates the fireman to do his job properly and
dismisses him as a result.

Ill health or injury 12

3. Investigation
a) Employer obliged to investigate employee’s disability
b) Should attempt to accommodate employee
c) How will the disability impact the employee’s performance?
d) Dismissal cannot be fair without expert evidence of
occupational health practitioner
e) Incapacity vs Misconduct? (Kievits Kroon-case; Alcoholism;
Kleptomania)
4. Alternative work
5. Pre-dismissal 'hearing'
6. When dismissal fair then?
7. Standard Bank of SA v CCMA 2008 29 ILJ 1239 (LC)

Ill health or injury 13

The Financial Director of a large company, who has Aids, develops
infections regularly over the past few months, which meant she had to
be hospitalised for treatment. She serves as the chairperson at the
monthly financial meetings, some of which had to be cancelled because
she could not attend them. The Director's doctor wrote a report in
which he stated that her condition has declined severely, meaning that
the absence from work would continue. The employer offered her
another appropriate position, one where her presence was not so
strictly required, but she refused. The employer gave her a month
notice of termination of her employment. She claims unfair dismissal.

Ill health or injury 14

1. CAREFUL!
2. Dismissal of person due to ill health or disability may
lead to a case of automatically unfair dismissal
3. Why?
4. Questions are asked:
a) Is the person completely incapable of doing the job?
b) Can he do the job with the necessary support and
accommodation?

Incapacity and Discrimination 15