Tag: incapacity

South Africa’s new Code of Good Practice: Dismissal took effect, replacing the previous codes on dismissal and operational requirements. The new dismissal code, guided by the Labour Relations Act 66 of 1995 (LRA), offers employers practical guidance on handling dismissals related to misconduct, incapacity and retrenchments.

A recent judgement by the Labour Court addresses the role that incapacity can play when an employee is charged with misconduct, and whether an employer is required to exclude the possibility of incapacity in these circumstances.

Labour relations and the fairness standards for dismissal of an employee in South Africa have long been centred around the formality of disciplinary or incapacity enquiry processes, and the tradition of the usage of these processes has built up an expectation that they are mandatory.  

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 the case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the Labour Court highlighted three characteristics of incompatibility: Firstly - Incompatibility refers to the employee’s 'inability or failure to maintain cordial and harmonious relationships with his peers', secondly - Incompatibility is a form of 'incapacity', and thirdly - Incompatibility is an 'amorphous, nebulous concept, based on subjective value judgments'.