Dismissal Based on Incapacity & Incompatability

INCAPACITY Poor work performance; ill health and incompatibility  Incapacity refers to an employee’s inability to perform his or her contractual duties, for a reason not attributed to the fault or negligence of the employee concerned.  Grogan argues, that 'employees cannot be...

INCAPACITY Poor work performance; ill health and incompatibility  Incapacity refers to an employee’s inability to perform his or her contractual duties, for a reason not attributed to the fault or negligence of the employee concerned.  Grogan argues, that 'employees cannot be disciplined for acts or omissions for which they are not to blame' but 'an inability to perform remains a ground for termination of a contract'. WHAT IS INCAPACITY?  INCAPACITY POOR PERFORMANCE MEDICAL INCAPACITY INCOMPATABILITY - lack of skills - illness - lack of knowledge - injury - inefficiency CONTINUED …..  Dismissal is justified if the employer can prove that it related to the employee’s conduct or capacity or based on the employer’s operational requirements -sec 188 of the LRA.  Dismissal for misconduct - an employees is blamed for an unacceptable conduct.  Incapacity and operational requirements dismissals arise from circumstances for which the employee is not to be blamed – these are no fault dismissal – there is no culpa on the employee.  Incapacity can arise from a variety of causes including ill- health or injury.  It can arise from any condition that prevents them from performing their work.  Ill health or injury is recognised as a legitimate reason for terminating employment r/ship.  Supervening impossibility of performance. Samancor v Metal & Engineering Industries Bargaining Council (2009) 30 ILJ 389 – employee was arrested and dismissed for being absent for 10 days. Court held his dismissal was not fair since he was not performing his duties  Poor performance: incident where an employee does not do his job according to the required standards.  The guidelines for the dismissal of an employee for poor work performance are found in item 9 of the code. POOR WORK PERFORMANCE (PWP) Any person adjudicating upon whether or not such a dismissal is unfair must consider the following: '(a) [W]hether or not the employee failed to meet a performance standard; and (b) if the employee did not meet a required performance standard whether or not - (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; (ii) the employee was given a fair opportunity to meet the required performance standard; and (iii) dismissal was an appropriate sanction for not meeting the required performance standard.' PWP: SUBSTANTIVE FAIRNESS  The Code requires an employer to conduct an investigation when allegations of poor work performance arise in order to determine the reasons for this.  This is done to determine whether any weaknesses exist in the support system and whether any steps can be taken by the employer to rectify the situation. DID THE EMPLOYEE FAIL TO MEET A PERFORMANCE STANDARD?  Employees should be reasonably have been aware of the required performance standard.  PS conveyed by means of general directives or by ad hoc, eg warning and counselling if an employee is underperforming.  The more the warnings and guidance the employee has received the more likely he is aware of his performance. AWARENESS OF THE PERFORMANCE STANDARD  If an employee knows his shortcomings and how the could be rectified, an employee should be given an opportunity to improve. REASONABLE OPPORTUNITY TO IMPROVE  Dismissal must be an action of the last resort.  Employee must be given the opportunity to be heard before a decision to dismiss is made.  Employer must prove that an employee is unable to perform duties he was hired to do. APPROPRIATE SANCTION  Designed to inform poor performer about their shortcomings, and give them an opportunity to improve.  The purpose is to make a dismissal decision a fair one.  Process of assessments, advice, counselling, guidance, and warnings are part of the fairness of dismissal.  The procedural requirement for poor performance dismissal are found in the Code of Good Practice. PROCEDURAL FAIRNESS  Item 8 says employees cannot be dismissed for poor performance unless the employer has: - Given the employee appropriate evaluation, instructions, training, guidance and counselling; and - If an employee continues to under perform after a reasonable period of time then: - Item 8(3) – cause of poor performance should be investigated. - Item 8(4) – employee should be given a chance to be heard. CONTINUED  Fair procedure requires that an employee must: - Conduct fair appraisal. - Issue initial warning (usually a verbal warning). - Counsel and assist an employee. - Warn an employee about what will happen if poor performance continues. - Grant employee with reasonable opportunity to improve. - Give an employee an opportunity to be heard. CONTINUED  The Code distinguishes b/twn temporary and unreasonable long absence due to illness or injury – item 10(1) of schedule 8  Before the termination of employment, the employer must investigate the extent of the employee’s incapacity  There must be attempts to adapt the employee’s work to accommodate him or her  Expert evidence may sometimes be required before termination of employment due to incapacity – NUMSA obo White & Lear Automotive Interiors (2005) 26 ILJ 1816 ILL HEALTH AND INJURY The code encapsulates the above concepts in its guidelines in cases of dismissal arising from ill health or injury as follows: '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 it is not possible, the extent to which the employee's duties might be adapted; and (iii) the availability of any suitable alternative work.' SUBSTANTIVE FAIRNESS In IMATU obo Strydom v Witzenburg Municipality (2008) 29 ILJ 2947 – Strydom suffered depression after promoted to senior admin officer and was absent from work for almost a year. He applied for medical boarding and was refused and called before incapacity inquiry and dismissed. Before dismissal the employee must be offered an alternative employment. If alternate employment is found, it would be unfair if his or her salary is reduced. Pre-termination hearing – to state his or her side of the story.  It will only be fair to dismiss sick or injured employee when there is no prospect of their recuperating.  In that regard such dismissal will be akin to dismissal on the basis of employer’s operational requirements.  Refers to the inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees.  Incompatibility is not one of the fundamental grounds for a fair dismissal recognised by the LRA.  The employee does not ‘fit in’ with the working environment and relates poorly to colleagues and clients.  Unsuitability – employee is unsuited bcz of their disposition or character.  In Larcombe v Natal Nylon Industries (1986) 7 ILJ 326 the employee was dismissed after six months in employment for a clash with the manager. The employer alleged incompatibility. The court held the reason was inadequate for the sanction of dismissal. UNSUITABILITY AND INCOMPATIBILITY In Lebowa Plt v Hill (1998) 18 ILJ 1112, Hill had called one of his subordinate a “bobejaan”, The union threatened with strike action. He was offered a transfer to another mine or early retirement – he rejected all of these and was dismissed. The question was where does, within the permissible grounds for dismissal, incompatibility should belong? Rycroft and Jordaan treated it as a species of unsatisfactory work performance or incapacity. Van Niekerk classified it as a form of dismissal for operational requirements.  To the extent that incompatibility results in poor work performance, it should be seen as a form of incapacity.  This is not to say that the employer’s operations may not require personal capacities on the part of the employee that are essential for the performance of a particular job.  Incompatibility relates essentially to the subjective relationship b/twn the employee & other persons and bears no relation to the definition of operational requirements.  The appropriate criterion for establishing the fairness of dismissal related to incompatibility is the “failure or inability of the employee concerned to maintain the standard of relationship with peers, subordinates and superiors set by the employer.  Jabari v Telkom SA (Pty) Ltd (2006) where the court said the following:  'Incompatibility is defined as a species of incapacity, and relates essentially to the subjective relationship of an employee and other co- workers, within the employment environment, regarding the employee's inability or failure to maintain cordial and harmonious relationships with his peers. Incompatibility is an amorphous, nebulous concept, based on subjective value judgments.’  The LC held that in order to prove incompatibility and justify the dismissal of the employee, the employer must prove:  The employee’s intolerable behavior was the principal reason for the disharmony between the parties and  The employee was advised of the problem and afforded a fair opportunity to remedy his conduct and remove the cause of the disharmony.  In van der Merwe and Agricultural Research Council (CCMA) (2013), the principles set out in Jabari was developed:  Incompatibility was ‘akin to a form of incapacity;’  Whether the tensions and disharmony created by the employee’s incompatibility can be remedied;  Has the employer taken ‘sensible, practical and genuine’ steps to improve the employee’s relationship; and  Time to achieve this important. The employees should not be dismissed until their impact on the employer’s enterprise had become intolerable.  Mhlonipheni v Mezepoli Melrose Arch and others  Samancor Tubatse Ferrochrome v MEIBC & others (2010) 31 ILJ 1838 (LAC  Moeketsi v Spilkin Optometrist (2012 SUPERVENING IMPOSSIBILITY Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) ZALCJHB 371; (10 October 2017):  Thus, an employer who anticipates terminating an employee’s services based on the supervening impossibility to perform his/her duties should ensure that the following elements (which had been identified in the Swissport case above) are considered and complied with before an employee’s services be terminated:  Did the client block the employee’s access and does the client refuse to allow the employee back on site?  Did the client indicate and confirm in writing that the employee would no longer be allowed on site; CONTINUED  Can the employee be utilised in an alternative position where the precluding condition does not influence his incapacity to do the work;  Did the client state the reasons why the employee is not allowed to re-enter the site;  Did the employer attempt to resolve the matter with the client and restore the employee’s access to the client’s site?