Incapacity arising from ill health or injury
Dismissal for incapacity must be both
procedurally and substantively fair and disputes about the fairness of the dismissal must be referred to the CCMA or relevant Bargaining Council within 30 days of the date of
dismissal.
Before dismissing any employee for incapacity the employer must investigate whether the employee’s work circumstances or duties can be adapted to
accommodate his incapacity.
The first step will be to determine whether the incapacity is temporarily of permanent. If temporary the employer must look at the extent of
the incapacity, the length of period of absence and investigate all possible alternatives short of dismissal.
If the time of absence is unreasonably long it might be
treated as permanent incapacity in which case the employer must look at either securing alternative employment or adapting the duties of the employee to accommodate the
disability.
Very important is that dismissal for incapacity can’t be fair unless the employee has been afforded the opportunity to state his case- the
requirements of a fair hearing will apply mutatis mutandis.
Dismissals for incapacity are guided by Schedule 8 Code of Good Practice: Dismissals issued in terms of the
LRA.
You could be entitled to up to 12 months compensation or reinstatement should the CCMA or relevant bargaining council find that you dismissal for incapacity
was unfair. Contact us today to assist you.
For Further Information, Please See:
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Unfair Dismissal 
