Incapacity refers to the situation where an employee is unable to carry out or perform to his/her contracted obligations due to the inherent inability on the part of the employee.
Misconduct is distinct from incapacity because ‘fault’ or ‘blame’ are not ascribed to incapacity.
Employees who are unable to perform their duties at the required standard can have a major impact on a business, as most employers do not have spare capacity to compensate for a deficit in productivity.
How do you, as a business owner deal with an employee who’s now suffered from some kind of incapacity
There is a distinction between temporary and permanent incapacity in the Code of Good Practice: Dismissal. The employee cannot be dismissed for the reason of a temporary illness or injury that is likely to be short-lived.
For the employee to receive appropriate treatment and to recover, they should be able to take paid or unpaid sick leave. Sick leave will be unpaid if the employee has exhausted his or her paid sick leave entitlement.
Nonetheless, if the employee’s incapacity is likely to be permanent (thus preventing continued employment in the current role), dismissal is a possibility, but as a last resort.
In accordance with the Code, the employer must consider all reasonable measures to preserve the employee’s employment.
- Steps an employer can take:
These steps should be followed:
- Notify the employee: The employer should issue the employee with a written notice to attend a consultation to discuss his or her unsatisfactory work performance. The employee should be given at least 48 hours’ notice, excluding weekends and public holidays, to prepare for the consultation.
- First consultation: A chance must be given to the employee to explain why they are not meeting the required standards during the consultation. An employee has the right to be assisted by a trade union representative, a fellow employee, or any other person authorized to act on behalf of the employee during any consultation regarding incapacity.
The employer should present a practical solution if the employee is not able to attend any consultations, such as visiting the employee at home or in the hospital, or dealing with the employee’s representative.
The following aspects should be addressed during the consultation:
- The required standard of work performance in the workplace;
- The employee’s duties;
- Why the employee is not meeting these standards according to the employer;
- The possible consequences of incapacity caused by ill health or an injury, resulting in a low level of work performance.
After obtaining all the relevant information, the employer must have another consultation with the employee to discuss the outcome of the investigation.
The employer should take all possible steps to assist the employee and implement the best remedy for the employee’s incapacity. Only if there is no alternative to dismissal can the employer can go ahead and dismiss the employee.
