Dismissal of an ill or injured worker

Home | About Us 7 must DOs before you dismiss an ill or injured worker Tuesday, 17th February 2014, by Joanna Weekes In today's Health & Safety Bulletin: What to do if an ill or injured worker cannot resume their pre-injury duties 7 things you need to do to dismiss an ill or injured worker .................................................Advertisement................................................. Want access to over 50 sample employment law contracts, policies, letters and forms you can copy and start using in your workplace? Click here to learn more .......................................................................................................................................................... Dear Reader, If you have an ill or injured worker, you might think that it is in your best interest to get them back into the workplace and working as quickly as possible - but this is not always the case. Early return to work is not always the right approach, it can agitate and extend an issue that could have been resolved in a shorter time with more rest. The decision to return a worker to work should be based on what the worker is capable of safely doing when they return to work. The decision about when a worker should return to work should be made with consultation between management, the worker, and after seeking professional medical advice. What if the worker is not fit for their pre-injury duties? If you determine (with the advice of a medical professional) that the worker will not become fit for their pre-injury duties for the foreseeable future, you will need to decide whether: you can offer the worker ongoing employment in a modified role to accommodate their condition; or you are going to terminate their employment. If both parties agree to the modified duties, then a new contract of employment can be drawn up. If this is the case, you can set goals that you and the injured worker have agreed on to ensure there is a clearly communicated expectation that the injured worker will return to their pre-injury duties. Remember, if a worker continues on modified duties for a prolonged period with no current plan to return to their pre-injury duties, it is arguable that the worker has been permanently appointed to a new role. When this occurs, the worker's old contract of employment is effectively terminated and replaced with a new one. If this were the case, you would be unable to dismiss the worker on the basis that they are permanently unable to return to their original position, as they have been appointed to a new role. 7 things you MUST do before dismissing an ill or injured worker Employers are generally prohibited from dismissing an employee because of incapacity due to illness or injury. However, there are certain circumstances in which you can dismiss an employee who is ill or injured. Before you terminate an injured worker, you must ensure that you do the following things: Obtain sound medical evidence regarding the worker's incapacity. Determine, and be able to prove, that the worker is unable to perform the job they were employed to perform. Determine, and be able to prove, that there is no reasonable measure you can take to accommodate the worker's injury or illness. Do not create an expectation in the worker that you will provide them with modified duties on an ongoing basis. Give the worker an opportunity to respond to the allegation that they are unfit for their duties and to the intention to terminate their employment. Consider the worker's length of service, employment history and the impact of dismissal on them. Check that you have no obligation to provide suitable employment under the workers' compensation legislation in your jurisdiction.  Until Thursday, Joanna Weekes Editor Health & Safety Bulletin Like the Health & Safety Bulletin? Check out our other free bulletins: Workplace BulletinGet the very latest employment law tips, ideas, news and practical advice sent straight to your inbox. Click here to sign up now. Smart Tax BulletinMake sure you stay completely in the know about important tax developments before they arise. Click here to sign up now Simply Social Media BulletinReceive handy links, ideas and tips to help you use social media effectively in your business. Click here to sign up now. Please whitelist the Health & Safety Bulletin to make sure you get every edition delivered to your inbox. The information in this email is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipient, please return the message to the sender and delete it from your records. All content is © 2007-2013 Portner Press Pty Ltd All Rights Reserved. Disclaimer: We research our recommendations and articles thoroughly, but disclaim all liability for any inaccuracies or omissions found in our publications. Click here to view our Privacy Policy and Terms and Conditions. Queries: For general enquiries, email cs@portnerpress.com.au or call 1300 782 911. Health & Safety Helpdesk: Paid subscribers to the Health & Safety Handbook can ask our experts for advice. Syndication: To republish an Health & Safety Bulletin article, please email cs@portnerpress.com.au for information. Health & Safety Bulletin ISSN 1837-6533 Portner Press Pty Ltd 96-98 Bridport Street Albert Park VIC 3206 Australia Managing Ill & Injured Workers Businesses face significant risks in the management of ill or injured workers. Our workplace relations lawyers are able to assist you in reducing these risks while at the same time ensuring you can achieve a productive and engaged workforce. Legal expertise: advising on return to work including suitable duties advising on termination of employment and defending any associated employment claims  preparing documentation including requests for independent medical assessments advising on disciplinary processes and workplace investigations advising on termination of employment issues and procedures relating to injured or ill workers defending unlawful termination, General Protections and wrongful termination proceedings relating to injured or ill workers Our experience: Advising a national leather processing business on return to work obligations for a seriously injured employee Defending unfair dismissal proceedings for a national postal organisation Advising a Sydney food producer on the graduated return to work obligations for an injured driver Advising an actuarial business regarding the termination of employment of a long-term employee suffering mental illness Undertaking investigations into bullying complaints and defending proceedings alleging disability discrimination for a statutory agency Incapacity Due To Ill-Health Or Injury In terms of the Labour Relations Act 66 of 1995(“the Act”), there are three grounds of dismissal, namely: 1.     Misconduct 2.    Retrenchment, and 3.    Incapacity In this article, we will focus only on incapacity as a ground for dismissal.  The Act does not define the meaning of incapacity.  However Schedule 8 of the Act, the code of good practice on Incapacity divides incapacity into two categories. 1.     Incapacity due to poor work performance; and 2.    Incapacity due to ill health or injury. Incapacity due to poor work performance has been deal with in our previous newsletters and we will only deal with incapacity on ill health or injury. Schedule 8 of the Labour Relations Act Code Of Good Practice: Dismissal Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability. In the process of the investigation referred to above, the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee. The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider. Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances. Guidelines in cases of dismissal arising from ill health or injury Any person determining whether a dismissal arising from ill health or injury is unfair should consider- (a)  Whether or not the employee is capable of performing the work; and (b)  If the employee is not capable- (I)         the extent to which the employee is able to perform the work; (ii)        The extent to which the employee's work circumstances might be adapted to Accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and (iii)       The availability of any suitable alternative work. The requirements Substantive fairness of incapacity – ill health     The employer should establish whether the employee’s state of health allows him to perform the tasks which he/she was employed to do;     The employer should establish the extent to which the he/she is able to carry out those tasks;     The employer should establish the extent of to which these tasks may be modified or adapted to enable the employee to carry out the tasks and still achieve the employer’s required standard of work which he/she was employed to do;     If the employee is unable to do the tasks employed for, the employer should determine the availability of suitable alternative work.     In NUMSA obo Josias v Tedelex Trading (Pty) Ltd,Case No. MEWC 2592, the employee was incapacitated as a result of injuries sustained on duty and then dismissed.  The employee was a television fault-finder with the employer for 21 years when he was injured on duty. The first injury occurred was to his shoulder and neck and this was aggravated by the second injury when a television fell on his head and he again injured his neck and back when working on a complete set. As a result he was off work often seeking medical treatment. The employer was not at all sympathetic and ignored the request of the employee that his work station should be adapted for him to continue performing light work. The employer then conducted an incapacity hearing and offered the employee an alternative position at half his salary, alternatively, he would be dismissed and paid a severance package. The employee declined both these offers and was then dismissed and paid 22 weeks’ salary as severance.  The Commissioner held that the employer could have accommodated the employee by adapting his workstation. This was not even investigated by the employer and the intolerant stance it adopted was unreasonable. Presenting him with an “either or” as it did was also not fair. The employer’s attitude of bump-down or leave was not appropriate for a company that knows it was dealing with a worker with a 15% disability caused at his place of work. The employer should have embarked on a structured assessment of the employee’s condition and assisted him with adaptation. A company representative could then have monitored his performance on a regular basis to assess what he could and could not do. The employer, who was responsible for the accident, needed to be more proactive in its action and the employer did not go far enough to meet the standards set by the Act. As a result the Commissioner held that the dismissal was substantively and procedurally unfair and awarded compensation of 30 weeks’ salary, being the difference between 12months’ salary and what had been paid to him already.     The requirements of procedural fairness of incapacity – Ill health     The employer should investigate the nature and extent of the employee’s illness or injury;     In consultation with the employee’s medical practitioner, the employer should establish the prognosis;     In Wylie and Standard Executors & Trustees (2006) 27. ILJ 2210 (CCMA), the employee was diagnosed with multiple sclerosis. An insurance claim for disability was submitted, but it was found that she was not totally and permanently disabled. The panel suggested the employee be accommodated in the current role, or secondly that she be assisted to pursue something outside of the bank or thirdly, that an alternative role be sought in the bank. The employer did not consider the first option to be feasible and that the other two options would be explored for three months. Her service was subsequently terminated. The CCMA subsequently found the dismissal to be unfair because the employer did not comply with the provisions of the Code of Good Conduct in the LRA. The CCMA stated that it was imperative that an occupational therapist be involved to determine the functional ability of the employee.     In Steyn v South African Airways WE2717/2007, an in-flight service s co-coordinator was dismissed for incapacity due to ill health. The employee had undergone a knee operation and was unable to perform flight duties for almost two years. The employer ignored the advice of its own aviation medicine specialist who had recommended that the employee be sent to an occupational therapist. The commissioner found that there was not enough evidence to determine whether the employee would be able to resume duties later. The dismissal was found to be unfair.     Though, it might be clear that the employee is failing to do the work employed to do, the employer may not dismiss at that stage.  The employer should establish whether there are alternative to dismissal, for instance, offering employee extended unpaid leave.     It is also important to note that the employee has the right to be heard before the employer could take any decision.     Further, that the employee has the right to his confidentiality regarding medical related issues and consent from the employee must always be obtained.      It is imperative to note that each case will depend on its own circumstances.  Further, that employees who deliberately abuse their sick leave will be dealt with under the normal procedure for dismissal, i.e., disciplinary hearing for misconduct. Incapacity and unfair discrimination on disability grounds In Standard Bank SA v CCMA and Others [2008] 29 ILJ 1289 LC, the judgement illustrate how thin the dividing line between ordinary dismissal for incapacity and automatically unfair dismissal for disability may be.  The employee in this case was involved in a fatal motor vehicle accident.  She suffered severe back pains.  She found it difficult to continue doing normal duties.  The employer, “Bank” sympathised with her and offered a light administrative work.  She found it to be uninspiring and requested telephone sales job.  She then found it difficult to sit and requested headset to enable her to work properly and the employer refused and relegated her to paper shredding job.  A year later after the accident, she was frequently absent from work.  The Bank acknowledged that she is unlikely to be able to resume her normal functions and asked to be medically boarded, which application was refused.  Two years after the accident, she was dismissed for incapacity.  She referred the matter to the CCMA for unfair dismissal.  The commissioner held the dismissal was unfair.  On review, the court disagreed with the commissioner’s view that that the Bank had been patient, tolerant and even charitable to the employee.  That observation, said the court, was inconsistent with the finding that the Bank failed to obtain a report by the occupational therapist and to consult with the employee about possible adaptations to her workstation, as it had been recommended by her medical doctor. The court noted that the claim for of unfair dismissal on incapacity ground goes further that the LRA may seem to suggest.  Such dismissals involves a number of constitutional rights, for instance, right to equality, human dignity, to choose occupation and to fair labour practices.  Further, that the finding that the Bank discriminated against her did not assist her because she had not mounted her case in the CCMA on that basis.  The court further, noted that had she had initially approached the court with a claim based on unfair discrimination; her claim should have been successful.    Incapacity in terms of the Act and Employment Equity Act compared: In National Education Health and Allied Workers Union ("NEHAWU") on behalf of Lucas and the Department of Health (Western Cape [2004] 25 ILJ 2091 (BCA), the Applicant had been employed as a general worker in the nursing department of the hospital operated by the Department of Health. After being injured on duty she could no longer be able to bend or lift heavy objects and was transferred to the clerical department while she was being assessed. She did not cope well there the other employers were unhappy that her work output was low and that she received special treatment. After an unsuccessful application for a more senior administrative post her superintendent applied for her discharge for incapacity in terms of the Public Service Act 1994 but the department required that she be assessed by a specialist and by an occupational therapist. The Applicant was advised by her union and refused to be seen by the occupational therapist. Subsequent thereto her employment was terminated for incapacity due to ill health or injury. In determining the fairness of the dismissal the arbitrator noted that the Code of Good Practice in the Employment Equity Act 55 of 1998 was far broader than the Labour Relations Act Code in respect of impairments that amounted to a disability. In that, where impairment amounted to a disability under the Employment Equity Act the employee was entitled to reasonable accommodation. The arbitrator was of the view that the general concept of fairness required an employer to consider whether a particular employee was a person with disabilities under the Employment Equities Act in determining whether there was a sufficient, valid and fair reason to terminate employment. The arbitrator's view was that even in circumstances where the employee had not specifically sought special treatment with reference to the Employment Equity Act and claimed the status of the person with a disability.  The above ought to be taken into consideration. The Arbitrator made a point that disability status is not to be considered only as a weapon to claim special treatment under the affirmative action provisions in chapter 2 of the EEA but that it should also be considered as a shield to protect the person who has a disability from being dismissed from employment for a reason related to that disability. It was also evidence that the employer had attempted to consider alternative accommodation in terms of the Act rather that in terms of terms of the Employment Equity Act. Having considered the extent of the employer's duty to make reasonable accommodation for the employee, the arbitrator found insufficient evidence that the employer had considered any reasonable accommodation in relation to this rule or the nursing department but all in relation to a clerical job for which she was in any event not qualified.  The employer should just not offer alternative accommodation but, should create suitable alternative accommodation.  The Act requires employers to look for suitable alternatives adapt the employee's current role where possible to accommodate the employee's circumstances. With the general notion being that if the employer complied, the termination is viewed as being fair both substantively and procedurally. Under the Employment Equity Act Code however and in particular item 11 which is a guideline on retaining people who became disabled during employment, employers are required to assess if the disability can be reasonably accommodated and the employer is enjoined to explore the possibility of alternative reduced work or flexible work arrangements. The technical assistance guidelines on the employment of people with disabilities have been published and require the employer to engage in the various steps viz. clarification of work limitations; development of job modification; return to work options etc. This requires that there should be consultation with employees and that supervisors must feel comfortable and ensure that they understand the nature of the employee's work limitations and that both parties must have a stake in the success of any job modification and all return to work plans. It is clear from the above that, employer may dismissed employee on grounds of incapacity, on the other hand not taking into account that they may be unfairly discriminating against the employee.  This may result in claims for automatic unfair dismissal based on disability which might have occurred as a result of injury of an employee. The employer should not just dismiss employees if they are no longer able to do the work they are employed to do, but there is a duty placed upon employers to investigate, seek professional advice and to determine the availability of alternative work.  Dismissal should be the last resort. Disputes over a dismissal based on incapacity due to ill-health or injury must be referred, within 30 days of the date of dismissal, to the relevant forum.  Should you need assistance, contact Retrenchment Assist at assist@retrenchmentassist.co.za .