NB! Employers you don’t have to prove fault by the employee, but you must be fair.
Incapacity
Is the inability to perform tasks due to the lack of mental or physical ability. Permanent Incapacity is when capacity cannot be restored.
The dismissal procedure is set out in section 188 of the Labour Relations Act, 66 of 1995.
The Employer must prove for the dismissal to be fair that:
- It has considered whether another position may be available to the employee.
- The employee cannot meet the demands of the position which is affecting the business.
- The employee has exhausted all leave to which they are entitled to, i.e. sick, annual.
- Medical records prove there is no plausible chance of recovery in a reasonable amount of time.
- Incapacity investigation has been done.
Operational Requirements
- Economical – a country in a recession
- Structural – lack of facilities and storage
- Technological – lack of computer hardware
The Procedure is set out in section 189(A) of the LRA.
For the procedure to be considered fair, the Employer must:
- Hold a consultation with the employee.
- Allow the employee to present evidence.
- Allow the employee to call witnesses.
- Allow the employee to nominate any fellow employee to act as the employee’s representative.
- Advise the employee that the employee has 30 days to refer the dismissal, if any, to the CCMA.
