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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. In this newsletter we look at three new cases: the first deals with the tricky distinctions between incapacity and disability and considers employers’ responsibilities before dismissal in these circumstances. The second deals with a practical issue: if a public holiday falls on a Sunday, are both that Sunday and the next day public holidays? The third case deals with the legality of employment contracts with foreigners.

In our article we look at ‘Preparing for Arbitration’ – we have tried to produce guidelines to help you when you have to present a case at the CCMA or bargaining council.

This public newsletter is a free edited version of the Worklaw subscriber newsletter.


Incapacity and disability

Test yourself: would you behave any differently to the employer in this case?

After 17 years` service, an employee was involved in a motor accident. Her injuries later caused a severe back pain. After resuming work, the employee found that she could not cope with travelling. She was assigned light administrative work. Finding this uninspiring, the employee applied for more responsible office work. She was able to undertake telephonic sales work if she could use a headset, but the employer declined to purchase a headset for her. The employee was again assigned tasks which did not involve using a telephone, including paper-shredding, which she found demeaning and painful. The employee’s application to be medically boarded was refused. A few months later, the employer decided to terminate her services on the grounds of incapacity, due to continuing absenteeism. The employee was dismissed two years after the accident.

These were the facts in the recent case of Standard Bank of South Africa v CCMA & others (2007) 16 LC 8.29.11. The matter came before the Labour Court as a review, the employee`s dismissal having been found to be unfair at arbitration. The Labour Court held that the employer had failed to obtain a report by an occupational therapist and to consult the employee about possible adaptations to her workstation, as had been recommended by a medical practitioner. The employee’s request for a headset to assist her in telephonic work had also been ignored, and the employer had also refused to purchase a special chair for the employee, and to allow her to use its computers. It had also not considered the possibility of appointing the employee to a half-day position. These omissions meant that the bank had not complied with the Code of Good Practice: Dismissal and the Code relating to the treatment of people with disabilities.

The Court saw there was a balancing process: the requirement that employers should make reasonable efforts to accommodate disabled employees is balanced against imposing unreasonable hardship on employers.  However, employers are required to adopt a four-stage inquiry before dismissing employees for incapacity. The questions to be asked are: (i) whether the employee is unable to perform his or her work, and if not; (ii) the extent to which the employee is capable of working; (iii) whether the employee’s work circumstances can be adapted and, if not; (iv) whether alternative work is available.

The court stated that if an employer dismisses an incapacitated employee without taking these steps, the dismissal is not only unfair, but also automatically unfair, because people with disabilities constitute a designated group. Disability must be distinguished from incapacity; dismissing an employee who is disabled but not incapacitated is automatically unfair, whereas dismissing an employee who is incapacitated may be fair. In the case of incapacitated employees, dismissal is fair where the obligation to accommodate the employee imposes unreasonable hardship on the employer. Hardship in this context means more than mere inconvenience.

This case does not provide easy answers to decide if an employer is dealing with incapacity or disability. The first of the tests - whether the employee is unable to perform his or her work – is usually taken to be a distinguishing feature of incapacity (ie the disabled person CAN perform the work but needs reasonable accommodation).  But it is often a difference of opinion whether a person can perform at all or only with reasonable accommodation. Our suggestion is to treat all potentially conflicting cases as disability, providing reasonable accommodation if this is possible without imposing ‘unreasonable hardship’, and take it from there.

This case also provided insights regarding balancing the employer`s obligation to ‘reasonably accommodate’ disabilities, but without imposing ‘undue hardship’ on the employer. The court stated that the onus of proving that a reasonable accommodation is unjustifiable rests with the employer. Whilst saying each case had to be judged on its merits, the court referred to the following definition of (u)njustifiable hardship contained in the EEA Code  

“Action that requires significant or considerable difficulty or expense. This involves considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.”

The EEA Code also acknowledges that an accommodation that is an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time. The court commented that unjustifiable hardship means “(m)ore than mere negligible effort”. Just as the notion of reasonable accommodation imports a proportionality test, so, too, does the concept of unjustifiable hardship.  Some hardship is envisaged.   

Public holidays

Where a public holidays falls on a Sunday, is the Monday a replacement for the public holiday or are both days public holidays? In Randfontein Estates Ltd v NUM (2007) 16 LAC 1.16.6 the union contended that the Sunday would have to be treated as a public holiday, as would the next day. It argued that workers who would ordinarily have worked on Sunday were not obliged to do so but were entitled to be paid for that day. In addition, the union contended that workers were entitled to be paid for the following Monday as well, without having to work. The employer contended that those employees were obliged to work on Sunday, but not on Monday. The Labour Court ruled in favour of the union, holding that public holidays do not cease to be public holidays when they fall on a Sunday. All that happens is that the Monday following the Sunday becomes an additional public holiday. The matter went on appeal to the Labour Appeal Court.

It was held that on interpreting the relevant statutory provisions in the Public Holidays Act 36 of 1994, the correct position was that there should be at least 12 public holidays in a calendar year and that when a public holiday falls on a Sunday the Monday becomes an additional public holiday. On that interpretation, the appeal was dismissed.

The legality of employing an illegal foreigner

The employee was an Argentinean national. He was lawfully resident in South Africa, although the employer contended that at the time it employed him, he represented that he was legally permitted to work for that company, which he was not. When this became apparent to the employer, the company terminated his employment. The employee referred an unfair dismissal dispute to the CCMA. The parties agreed that the Commissioner should determine, as a preliminary point, whether the CCMA had jurisdiction to arbitrate the claim. The Commissioner ruled that he was an employee, and that the CCMA had the jurisdiction to determine his unfair dismissal dispute. The employer sought to review and set aside the Commissioner's jurisdiction ruling in the Labour Court.

These were the facts in Discovery Health Limited v CCMA (Case no. JR 2877/06 (LC)). The court held that by criminalising only the conduct of an employer who employs a foreign national without a valid permit and by failing to outlaw explicitly a contract of employment concluded in these circumstances, the legislature did not intend to render invalid the underlying contract. Secondly, the protection against unfair labour practices established by s 23(1) of the Constitution is not dependent on a contract of employment. Protection extends potentially to other contracts, relationships and arrangements in terms of which a person performs work or provides personal services to another. The line between performing work ‘akin to employment’ and the provision of services as part of a business is a matter regulated by the definition of ‘employee’ in s 213 of the LRA.

What this means is that a foreigner employer without a valid work permit is still an employee as defined by the LRA and protected against unfair dismissal. In turn this means that an employer who finds it is illegally employing someone should not just terminate the contract in writing. The dismissal should be procedurally and substantively fair. In other words, have a normal hearing. At a substantive level, we believe that the fact that an employee cannot legally work should provide a fair basis to terminate on the basis of incapacity.


Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa`s most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.

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Bruce Robertson
May 2008
Copyright: Worklaw