DISMISSAL FOR INCAPACITY / ILL HEALTH OR INJURY

Dismissing an employee due to ill health or injury is a sensitive and complex process. While incapacity may be a legitimate reason for termination, employers must ensure that such dismissals comply with Schedule 8 of the Labour Relations Act (LRA) and the Code of Good Practice on Dismissal.

Failing to follow the correct legal and procedural steps can result in claims of unfair dismissal, making it crucial for employers to navigate this process carefully.

Avoiding Automatically Unfair Dismissals:

Not all dismissals related to ill health or injury are lawful. If a dismissal is based on discrimination—such as terminating an employee due to a disability—it may be considered automatically unfair under the LRA and the Employment Equity Act (EEA).

When Is Dismissal for Incapacity Justified?

According to the Code of Good Practice on Dismissal, incapacity due to ill health or injury can be a valid reason for dismissal—but only if the employer has taken reasonable steps to determine whether termination is justified.

For a dismissal to be fair, it must meet two key requirements:

1. Substantive fairness – Is there a legitimate reason for dismissal based on the employee’s inability to perform their job?

2. Procedural fairness – Has the correct process been followed before making a final decision?

Employers bear the responsibility of proving both elements to ensure compliance with labour laws.

Substantive Fairness: Assessing the Validity of a Dismissal

To prove that a dismissal for ill health or injury is substantively fair, the employer must demonstrate that the employee is incapable of performing their job duties due to their health condition.

The following factors must be considered:

1. Is the employee unable to perform their work?

2. Is the level of incapacity severe enough to justify termination?

3. Is the incapacity permanent or expected to last an unreasonably long time?

4. Can the employer accommodate the employee?

5. Are there alternative positions available?

If these conditions are met, the employer may have substantive grounds for dismissal.

Procedural Fairness: Following the Correct Process

Even if an employer has valid reasons to dismiss an employee for ill health, the process followed must be fair.The

The following steps to should be taken to ensure procedural fairness:

1. Conduct a thorough investigation.

2. Consult with the employee.

3. Hold a pre-termination incapacity hearing

If the employer fails to follow proper procedures, the dismissal may be ruled unfair, even if the incapacity is genuine.

Final Thoughts

Dismissing an employee for ill health or injury is a last resort and must be handled with care. Employers should explore reasonable accommodations and alternative roles before considering termination. If dismissal is unavoidable, following both substantive and procedural fairness requirements is critical to avoid legal disputes.

If you need guidance on handling an incapacity dismissal fairly and lawfully, contact us today for expert HR support.