For a dismissal to be fair, you must prove that you had a fair reason to dismiss. One of the forms a fair reason can take is related to the incapacity of the employee.

WHAT IS THE DEFINITION OF INCAPACITY?
The failure or inability of the employee to work according to the requirements of the job. Incapacity encompasses poor work performance but also the inability to perform as a result of ill-health or injury.

Incapacity because of ill-health differs from poor work performance because there can be no fault attributed to the employee for incapacity due to ill-health or injury. In situations where the employee is not at fault you will be required to help the employee stay in employment if this is at all reasonably possible.

THE INVESTIGATION PROCEDURE

There is no laid down format for such an investigation. You would usually meet with the employee (one or more times, depending on what is needed to obtain all the relevant information and explore alternatives). If the employee is incapable of attending a meeting you will need to come up with a practical solution such as visiting the employee at home or in hospital or dealing with the employee’s representative. You could resort to communicating in writing but this is not ideal and face to face meetings are preferable.

If the absence is likely to be ‘unreasonably long in the circumstances’ you may consider dismissal but you must investigate all possible alternatives before dismissing the employee. The concept of ‘unreasonably long in the circumstances’ is similar to the concept of ‘how long is a piece of string’. As circumstances differ vastly so will what is regarded as reasonable in different situations.

Consider the factors below to help you in this process:

1. What is the nature of the job?
   Is it the kind of job where you can easily substitute the incapacitated employee with someone else? Or is it a specialized skill where there is no-one else in the University who can do this job? If the latter is the case then this may be the sort of situation where the only solution is to hire a permanent replacement.
2. How long is the employee likely to be absent?
   If the absence is likely to be relatively short it will be easier for you to get by. You may be able to simply delay having the task performed for a few weeks – say the employee was an HR officer responsible for training, it may be that the training courses he/she was going to run can be held over for a few weeks until he/she recovers and is able to come back to work.
3. How serious is the incapacity?
   If the incapacity is not serious the employee could come to work and perform certain aspects of his/her job, if not nearly all. If that is the case you may be able to delegate the few functions he/she can’t perform to other employees for a few weeks and allow the incapacitated employee to carry on with the rest of his/her functions. Check with the doctor that this is possible and specifically what functions he/she can and can’t be expected to perform.
4. Is there a possibility the employee can be temporarily replaced?
   This factor is quite closely aligned to the nature of the job. For some jobs, it is easy to employ a temp to do the job for a period of time on a fixed term/temporary contract basis. For others – particularly in the case of highly specialized or scarce skills – it’s not, as people with those skills are generally all in permanent employment.

PERMANENT INCAPACITY

Where the investigation shows the employee’s incapacity is permanent (you would use the same process of getting a medical report and prognosis as outlined above under temporary incapacity) you must consider:

1. The possibility of alternative employment (for example a different job within the University that the employee is capable of doing despite the injury or condition).
2. The adaptation of work duties or work circumstances to accommodate the employee if this is reasonably possible (for example, reduced working time, reduced workload, job sharing, adapting the equipment used by the employee etc).
3. The possibility of medical boarding (if the employee is a member of a fund or scheme which provides disability benefits).

WHEN CAN THE EMPLOYER DISMISS?

An employer can only dismiss as a last resort, after having considered all reasonable alternatives.

What must be considered when deciding dismissal?

• What is the degree of incapacity?
• How was the incapacity caused? For example, was it a work-related illness or injury?
• Is the employee still capable of performing some or most of his/her duties? If yes, consideration should be given to retain the employee, (in a lesser job at a lower salary. The employee may be prepared to accept this an alternative to dismissal)
• To what extent could the employee’s duties or work circumstances be adapted? If the adaptation would be small and wouldn’t be costly consideration should be given to that option.
• Is there any suitable alternative work available?
• What is the possibility of disability benefits/medical boarding?
• Can the employee be said to suffer from a disability?

INCAPACITY HEARINGS
The Unit assists the chairperson in holding such hearings. Guidelines are available in respect of the process.