INCAPACITY ON THE GROUNDS OF TEMPORARY ILL HEALTH OR INJURY
INCAPACITY ON THE GROUNDS OF TEMPORARY ILL HEALTH OR INJURY
1. The Basic Conditions of Employment gives all employees, who work 5 days per week, 30 days’ paid sick leave in each 3 year cycle. Once the employee’s sick leave entitlement has been exhausted, the employer is no longer obliged to pay the employee for any future absences of sick leave within the 3 year cycle.
2. The employer has to take cognisance of both the substantive and procedural fairness prior to contemplating dismissing the employee:
Substantive fairness should include the following:
– The nature of the incapacity
– The cause of the incapacity
– The likelihood of recovery
– The improvement or recurrence
– The period of absence and its effect on the employer’s operations
– The effect of the employee’s disability on other employees
– The employee’s work record and length of service
Procedural fairness should include the following:
– The employer’s counseling sessions with the employee regarding the employee’s ailment/ s
– In conjunction with the employee, the employer should try and find a solution to the problem
– The employee should be assessed whether the employee is still capable of performing the duties for which the employee has been employed
– The employer should investigate all the possible alternatives short of dismissal
Can the employee be offered suitable alternative work?
Can the employee be retrained in order to retain a job?
Bearing in mind the above, dismissal is justified in the case of illness or injury, which illness or injury occurs frequently.
Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za
