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How to legally dismiss an employee who can't do his job anymore

by , 18 June 2013
Pete, your construction foreman broke his back in an accident on holiday. He's now used up all his sick leave. And he gets booked off for days at a time and you can't plan around him. When can you say enough is enough? You've done what you can, but the business can no longer cope with all his absences.

In a case like this it's now become a case of permanent incapacity even though it seemed temporary when it happened.

Use this six point checklist to help dismiss an employee for incapacity.

Use this checklist to dismiss an employee for incapacity without worrying about the CCMA…

When planning a dismissal for incapacity due to injury, you MUST consider:

1.    The nature of the job. What does it involve and how is the illness or injury preventing him from doing it properly?

2.    How much longer his attendance at work will be erratic. Get his doctor to give his opinion again of how long this is likely to continue. Remember, you can send the employee to an expert of your choice and at your cost if you want an independent assessment.

3.    The seriousness of the illness or injury. Consider the medical reports, the new prognosis, and second and further opinions if necessary. If the specialists say you can expect this to go on for a while or indefinitely, you need to consider the impact on the business.


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3  more points to consider:

4.    The possibility of a substitute. You may already have brought in a temp the first time around but consider doing it again if it won't be too long, too disruptive or too costly.

5.    All reasonable alternatives. Try and lighten the employee's duties, put him in an office job or take him out of the office for a while, etc. If you've already tried to accommodate him and it's clear he can't cope, see if there's another job he can do. You're not obliged to create a vacancy.

6.    Consult throughout and let him know the seriousness of the situation; that his job could be at stake. Remember, a fellow employee or trade union representative can assist him during the consultations. You must also consider all the employee's points. Implement them if they're workable and tell him in writing if and why you disagree.

You can hold an enquiry once you have complied with ALL the above. You must present all the evidence at the enquiry and give the employee and his representative an opportunity to respond.

You can find more information about Incapacity in chapter I04 of Labour Law for Managers Loose Leaf Service. Not yet a subscriber?

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