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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter focusses entirely on the concept of the employer's obligation to make 'reasonable accommodation' for employees in certain circumstances and for certain types of employees. Both our standard section of the newsletter dealing with new cases and our monthly article focus on this important concept.

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


In NEHAW on behalf of Lucas and Department of Health (Western Cape) (2004) 25 ILJ 2091 (BCA) the employee was employed as a general worker in the nursing department of a hospital. After being injured on duty she was no longer able to bend or lift heavy objects and was transferred to the sewing department while her case was assessed. She did not cope well there and the other employees were unhappy that her work output was low and that she received special treatment. She applied for a more senior administrative post, but was unsuccessful. Her superintendent applied for her discharge for 'incapacity' in terms of the Public Service Act 1994, but the department recommended a reassessment by a specialist and by an occupational therapist. On the advice of her union she refused the latter. Three years after the injury her employment was terminated for incapacity due to ill health or injury.

In proceedings to determine the fairness of the dismissal the arbitrator noted that where an impairment amounted to a disability under the Employment Equity Act (EEA), the employee was entitled to 'reasonable accommodation'. After considering the evidence the arbitrator found that she fell within the definition of 'people with disabilities' as defined in the EEA. The evidence showed that the employer had attempted to 'accommodate the employee's disability' in terms of the Dismissal Code of Good Practice on incapacity: ill health and injury, attached to the LRA rather than as an employee with a disability in terms of the EEA. The arbitrator considered whether use of the correct procedure would have produced a substantively fairer outcome, and concluded that the parties should have followed the EEA code and the Guidelines on the Employment of People with Disabilities at an early stage. They would then all have informed themselves, worked together, and identified possible accommodation.

After considering the extent of the employer's duty to make 'reasonable accommodation' for the employee, the arbitrator found insufficient evidence that the employer had considered any reasonable accommodation in relation to the sewing room or the nursing department, but only in relation to the clerical job for which she was in any event not qualified. The arbitrator noted that the department had recommended an assessment by an occupational therapist. Despite the employee's failure to co-operate, without such an assessment the employer did not have sufficient substantive reason to terminate the employment. The employer was entitled to require the employee to submit to such an examination, and the employee had to co-operate. If after such examination the occupational therapist considered that the employee could, with reasonable accommodation, return to work, the employer was ordered to reinstate the employee, but without backpay.

In Ferreira / Standard Bank of South Africa [2006] 6 BALR 617 (CCMA) a mobile home consultant was given special administrative duties after being injured in a motor accident. After a period, she complained about the manner in which she was being treated and requested early retirement. The trustees of her pension fund declined her application, after which the employer terminated her services for excessive absenteeism. The employer claimed that it had done more than was required to assist the employee, and that there was a valid reason to terminate her services because her condition showed no sign of improvement.

The commissioner noted that an employee may be dismissed for incapacity if the employee has been counseled and efforts made to adapt her duties. However, an employer's duty to assist employees is more onerous when the employee has been injured in the course of duty. It was common cause that the employer had made efforts to accommodate the employee. However, the employer's incapacity procedure provided that if disabled employees are unable to cope with their work, an occupational therapist should be retained to assess the employee. This had not been done. Given that the employer had not complied with its policy in this regard, it was impossible to separate substance from procedure. The employee was awarded compensation equivalent to eight months' remuneration.

In Jansen and Pressure Concepts (2005) 26 ILJ 2064 (BCA) the employee was employed as a welder on 2 March 2004 and was dismissed for poor time-keeping on 9 February 2005. He also received a final written warning on 9 November 2004 for arriving at work under the influence of alcohol, and on 24 January 2005 was sent home for being under the influence of alcohol. The employer's records showed a long history of late coming and absence without leave, which the employer alleged had precipitated the decision to take disciplinary action against the employee. The employee maintained that his daughter had developed a drug problem, which had precipitated his drinking, and his absences while seeking help from social workers, and that he had notified the employer of this and had sought help. He claimed his dismissal was therefore unfair.

Referring to the Code of Good Practice: Dismissal, the arbitrator found that it was a reasonable and valid rule that employees arrive at work on time, and that the employee knew of it. However, the rule had not been applied consistently, as the employee was given no clear indication that if he continued to arrive late he would be dismissed. Also more serious offences such as arriving at work under the influence of alcohol had not resulted in dismissal. This did not show a consistent application of workplace rules.

In considering whether dismissal was an appropriate sanction the arbitrator found that the reason advanced by the employee for his poor time-keeping indicated that he was suffering from an alcohol-related problem, and that the employer had a duty to manage the disciplining of the employee on the basis of incapacity. Proper consideration had not been given to this problem, and the employer had failed in its duty of accommodation in the light of the employee's alcohol problem. These factors rendered the dismissal substantively unfair. The employer was ordered to re-employ the employee from the date of the arbitration, subject to a written warning for poor time-keeping, and to attempt to assist the employee with his alcohol problem.

In Wylie and Standard Executors & Trustees (2006) 27 ILJ 2210 (CCMA) the employee, a trust officer, was diagnosed with multiple sclerosis, a degenerative neurological disorder. When she could not perform to the required standards in the trusts division she was transferred to the estates division where there was less pressure. Fewer estates were given to her to handle but she still could not manage all her files. Stress worsened the employee's condition, but a medical panel found that she was not totally and permanently disabled. The panel suggested that the employer consider either (a) accommodating the employee within her current role; (b) seeking employment for her in another role in the bank; or (c) assisting her to pursue something outside of the bank. The employer did not consider option (a) to be feasible. The employee was advised that options (b) and (c) would be explored for a period of three months after which, if no solution could be found, her employment would be terminated. No suitable positions became available and her employment was terminated at the end of the three-month period.

In arbitration proceedings the employer contended that it had complied with its Code of Good Practice: Ill Health and had treated the employee with understanding and compassion. In those circumstances it was reasonable to dismiss the employee. It was common cause that her impairment amounted to a disability. The employee contended that the Code of Good Practice on the Employment of People with Disabilities published under the Employment Equity Act 55 of 1998 required much more of an employer in the case of a disabled employee, and that the employer had failed to comply with these.

The commissioner first considered the definition of 'people with disabilities' in s 1 of the EEA read with the definition of a 'physical impairment' in item 5 of the Disability Code, and found it inescapable that the employee's condition amounted to a disability as envisaged in the EEA and the code. Item 6 of the code provided that employers should 'reasonably accommodate' the needs of people with disabilities. The LRA also protected employees against unfair dismissal on the basis of disability. The Code of Good Practice: Dismissal distinguished between dismissals for incapacity based on poor performance and those based on ill health or injury, and 'disability' was mentioned in passing in items 10 and 11 of that code. The commissioner considered whether 'incapacity for ill health or injury' and disability were interchangeable, and concluded that they were not. Incapacity implied that an employee was not able to perform the essential functions of the job. An employee with a disability was suitably qualified and generally able to perform the essential functions of the job with some form of reasonable accommodation.

The commissioner agreed with the views of the commissioner in NEHAWU on behalf of Lucas and Department of Health Western Cape and found that the employer had not treated the employee as a person with a disability but as a poor performer. It was apparent that the employer had not complied with the guidelines set out in item 6 of the Disability Code in all respects. It also did not follow its own incapacity management guidelines. When the panel decided that the employee would not be given a pension the employer did nothing more, but looked for possible posts to become vacant. That was clearly not enough reasonably to accommodate a disabled person. It was also unfair first to give notice of termination and then to look for possible alternatives. The employee did not seek reinstatement and maximum compensation was awarded. INFORMATION ABOUT WORKLAW

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Bruce Robertson
April 2007
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