Study Unit 5.4

Study section 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
SU 5.4 Study Outcomes

1. Incapacity 2nd ground for fair dismissal
2. Divided in two categories nl.
1. Incapacity due to poor work performance
2. 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

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)

1. Probationary employees
(Item 8(1), 8(3) & 8(4))
1. Employee proves himself
2. Employer prohibited from abusing probation period – How do they
abuse it?
3. Employee assessed with proper guidance, training and instructions
4. Employee receives notice of specific poor standard
5. Reasonable chance to improve
6. VLC Properties v Olwyn
7. Wilson and Nambiti Technologies 2012 33 ILJ 769 (CCMA)
Poor work performance (Item 8 & 9)

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

2. ‘Tenured’ employees
(Item 8(2)-(4))
1. Employer investigate standard of work performance
2. Issue warnings
3. Poor standard not necessarily have its origin in employee
4. Beyond employee’s control? Be more sympathetic.
5. Assess employee's services
6. Investigation should be fair
7. How can the employee be helped? Guidance, training, alternative
position.
8. A-B v SA Breweries
9. Brodie v CCMA 2013 34 ILJ 608 (LC)
10.Damelin v Solidarity obo Parkinson

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.

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.

1. Determine nature and seriousness of incapacity
1. Item 10 & 11 NB!!
2. Employer must follow the elements in these items carefully
3. Employer should thus determine level of incapacity and first
consider accommodation where possible
Ill health or injury

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

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.

3. Investigation
1. Employer obliged to investigate employee’s disability
2. Should attempt to accommodate employee
3. How will the disability impact the employee’s performance?
4. Dismissal cannot be fair without expert evidence of occupational
health practitioner
5. Incapacity vs Misconduct?
(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)

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.

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:
1. Is the person completely incapable of doing the job?
2. Can he do the job with the necessary support and accommodation?
Incapacity and Discrimination

Study Unit 5.4

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Study section 5.

SU 5.4 Study Outcomes

Dismissal due to incapacity

Poor work performance (Item 8 & 9)

Poor work performance (Item 8 & 9)

Poor work performance

Poor work performance

Poor work performance

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

Poor work performance

Ill health or injury

Ill health or injury

Ill health or injury

Ill health or injury

Ill health or injury

Incapacity and Discrimination

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