Many employers have commenced operating again with the easing of the lockdown restrictions and many employees have returned to normal work. In addition to the COVID-19, it is the cold and flu season, and many employees are getting ill because of normal flu or cold resulting in work falling behind just as employers are recovering from the lockdown.
Employers have the challenge to distinguish the genuine cases of illness from those where employees are just sick of working. Furthermore, employees may abuse sick leave by attempting to substitute normal flu illness with COVID-19 illness or unreasonably refuse to return to work for alleged fear of contracting COVID-19 even where the employer has implemented all the required safety and health protocols in the workplace.
When an employee is absent from work for a prolonged period, either due to injury, illness or refusal to work for whatever reason, the employee becomes unable to perform the job that he/she was employed to perform, and therefore becomes ‘incapacitated’. Incapacity is not misconduct but it could lead to dismissal. Incapacity is said to have occurred when the employee fails to perform at the required performance level due to reasons other than misconduct, i.e illness, injury, imprisonment and poor work performance.
The Labour Relations Act (LRA) requires that employers may consider dismissing employees whom are incapacitated by illness or injury only as a last resort. While every employer is expected to go the extra mile, the larger and stronger an employer is, the more it will be expected to do to accommodate the employee. For example, in the case of Standard Bank of SA vs CCMA (2008, 4 BLLR 356) the employee was injured on duty after 15 years of loyal and exemplary service. The damage to her back made it impossible for her to carry on with her normal duties. The employee was eventually dismissed for incapacity, but this was after a long period during which the employer made continued efforts to accommodate the employee including the following:
- Getting advice from a doctor on how to help the employee.
- Looking for and finding a series of alternative positions for the employee.
- Even though the alternative jobs were more junior than her original job the bank did not reduce the employee’s pay.
- When the employee was in pain her boss would send her home for the day.
- The bank gave the employee three extra months’ paid recuperation leave.
All of the above did not satisfy the Court because the employer had failed to:
- Act on the medical practitioner’s recommendation to get advice from an occupational therapist on how to accommodate the employee.
- Give the employee a telephone headset and a comfortable chair in order to assist her to work with less pain.
- Allow the employee to do the job of entering computer data out of fear that her medication might interfere with her concentration.
- Consider the employee’s request to work half day.
- Allow the employee to state a case before dismissing her.
- Consult technical experts before taking the dismissal decision.
The Court concluded from the above that the employer had not really wanted to keep the employee in its employ. It was acknowledged that the employer had genuine problems in keeping the employee in its employ because:
- The employee had been absent for 74 days in one year and 116 days in the following year.
- The employee admitted that she struggled to cope with the alternative jobs.
- The employee often needed to go home early due to pain.
Despite the above, the Court found that:
- The bank would have been able to accommodate the employee because the cost of doing so would have been affordable for the bank.
- The employee’s inability to cope with the new work was partly due to the employer’s reluctance to give her headphones and a comfortable chair.
The Court, therefore, found that the dismissal was unfair and that the bank had discriminated unfairly against the employee.
While the above case is about an injured employee, the outcome confirms that any employer in such a situation, whether it be an injury, prolonged illness or refusal to work, must:
- Try to change the physical workstation of an injured employee if such injury interferes with the employee’s ability to work.
- Try to change the employee’s tasks.
- Consult with the injured employee, the prolonged ill employee and/or the employee who is refusing to work on these matters before dismissing him/her.
- Obtain and carry out the recommendations of medical experts unless it can prove that this is truly not viable.
- Before deciding that nothing more can be done to save the employee’s job, obtain advice from a LabourMan consultant/attorney.