The law prohibits employers from disciplining employees who are ill or disabled. The Employment Equity Act prohibits unfair discrimination against employees on the grounds of illness. Section 187(1)(f) of the Labour Relations Act (LRA) renders automatically unfair a dismissal implemented due to the employee’s illness.
In Black Mountain vs CCMA and others (2005 1 BLLR 0001) the employee was found guilty of damaging property while driving under the influence of alcohol. The employee was dismissed and referred an unfair dismissal dispute to the CCMA. The CCMA arbitrator agreed and overturned the dismissal.
However, the Labour Court, after looking at the employer’s policy in regard to alcohol related infringements, decided that:
- The employee had been wrong in what he had done
- The employer should have allowed the employee to go for rehabilitation
- The dismissal was unfair
- The employer was required to reinstate the employee and to give him back pay for a period of 18 months
- The employer was to pay this money to the employee with interest.
In the case of Mthethwa vs Capitol Caterers (2007, 5 BALR 469) the employee was dismissed after he was off ill from work for two weeks. The CCMA ordered the employer to reinstate him with full back pay because the employer had failed to follow the incapacity laws.
The above cases make it clear that, although employees can be dismissed for abusing sick leave, absence without permission and poor work performance:
- Sick employees are strongly protected from unfair treatment aimed at their disabilities
- Alcohol abuse can be seen as an illness in South African law
- Employers are legally required to adhere to their own policies
- Treatment must be considered before dismissal of a sick employee can be considered
- The incapacity procedure prescribed by law cannot be ignored.
Therefore all employers are advised to:
- Check with a labour law expert as to whether or not the circumstances merit dismissal
- Explore every alternative to dismissal before considering terminating the employment of a sick employee;
- Genuinely and thoroughly involve the incapacitated employee in the process of consideration of alternatives giving the employee ample opportunity to state his/her case;
- Formally place on record every step taken in the above process;
- Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.