Managing Incapacity due to Ill-Health – Part 2

May 18, 2015

InjuryThe first article dealt with what incapacity is and the legal requirements for dismissals due to incapacity. This second article describes the steps to be followed when dismissing an employee for incapacity due to ill-health.

Steps to follow in Dismissing for Incapacity due to Ill-Health

First talk to the employee informally about his health. He should be told about the impact it has on the business, the department’s needs, his colleagues, etc. The situation should not be ignored and then all of a sudden call the employee to the meeting in step 1. An employer needs to be able to show that everything has been tried before going the formal route below.
Step #1: Send a meeting notification

The employee must be sent a written communication asking for a meeting. The tone of the letter is extremely important. It should be firm, but the employee must know it is serious and cannot carry on. The difficult position the employee is in should be taken into account.
 Step #2: Hold the meeting or consultation
The meeting is to look into the reasons for the incapacity. Both the employer and employee must work together to find the best solution. The employer’s interests must be productivity and commitment from the employee. The employee’s interest is to keep his job.
Start the meeting by asking the employee how he is. He must be told that his absenteeism has been noticed and that he has not been able to do his work properly. The employee must be told the future needs to be discussed. He further must be asked that if the situation improves, will he be able to work a full day and/or shift.
 Step #3: Conduct an investigation
An employer has a legal obligation to look into the incapacity, with the cooperation of the employee. The incapacity needs to be looked at, including its severity, how it impacts on the work and what the likely diagnosis may be. In   other words is the employee able to return to work in the long run? The best solution to the problem must be investigated. The operational needs of the employer must be considered and the employee’s need to earn a salary.
Step #4: Give the employee an outcome

A solution will depend solely on the employee’s condition. This will include the likely prognosis, alternatives the employer has considered in the business, the operational requirements and the employer’s ability to support the employee. The employer must also look at the extent to which it can afford to be generous and supportive. This could include placing the employee on ill health   retirement should there be a pension and/or provident fund and the rules make provision for such retirement.
The final outcome may be dismissal. This will be when there is no alternative viable for the employee and the employer cannot afford to keep the employee any longer. The dismissal must be dealt with sensitively and the wording of the termination letter must be compassionate. Before the employee is dismissed, the employer must make sure to follow a formal incapacity hearing.
In summary, then, it will be fair to dismiss an employee for incapacity if:

  • The employee has been counselled and his medical condition and the problems arising from them have been discussed with the employee;
  • The employee‘s medical condition makes it impossible for the employee to perform his normal duties;
  • The employee’s prognosis is poor;
  • The employee has had a fair opportunity to contest the employer’s conclusions about his medical condition and prognosis;
  • The employee’s working conditions cannot be adapted or alternative work is not.


Disclaimer: LabourMan exclusively provides services to employers.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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