Firstly, you have the right to dismiss an employee for incapacity due to ill-health. But you do need to work in line with the law before you do anything… Let's look at what you need to do.
In only 30 minutes, you get the knowledge and power you need to legally dismiss problem employees without being taken to the CCMA
Take charge of poor performance and fire that problem employee! Legally!
Our experts have done all the hard work for. In "You're fired!' Your guide to substantively and procedurally fair dismissals, you'll get everything you need to confidently dismiss employees and be sure that it was done legally. You'll receive all the necessary forms and templates and be able to re-use in every dismissal scenario you're ever faced with.
Four steps to follow to dismiss an employee for incapacity for ill-health
Before you get to these steps, talk to him informally about his health. Tell him about the impact it has on the business, your department's needs, his colleagues etc. Don't ignore the situation and then all of a sudden call him to the meeting in step 1. If this matter ever goes to the CCMA, you need to be able to show you tried everything before going the formal route below.
Step #1: Send a notification to call a meeting
Send the employee written communication asking for a meeting. The tone of your letter is extremely important. It should be firm, but he must know it's serious and can't carry on. Take into account the extremely difficult position the employee's in.
Step #2: Hold the meeting or consultation
The meeting is to look into the reasons for the incapacity. Both of you must work together to find the best solution. Your interests will be productivity and commitment from the employee. The employee's interest is to keep his job.
Start the meeting by asking the employee how he is. Tell him you notice his absenteeism, and that he hasn't been able to do his work properly. Tell him you really want to discuss the future. Ask him if the situation will improve and if he'll be able to work a full day.
Keep reading for the next two steps...
The CCMA doesn't care why you dismissed an employee... It only wants to know if you dismissed him fairly
So… Your employee's guilty of misconduct. Let's say he took a company laptop home, without asking permission. It's a simple open and closed case of theft, isn't it?
Not so fast! You can't just say 'that's it, you're out of here' and think that's the end of that. No, you still have to hold a disciplinary hearing. You still have to give him a chance to defend his case, and explain why he did that.
You also have to prove that he did this. You have to spell it out for him and notify him you're going to discipline him. And you have to give him time to prepare his case.
And then there's even more to it… You have to have a disciplinary hearing so you can prove your case, and give him a chance to defend his… And this is where most employers fail.
Step #3: Conduct an investigation
You have a legal obligation to look into the incapacity, with the cooperation of the employee. Look at the incapacity, including its severity, how it impacts on the work and what the likely diagnosis may be. In other words is the employee able to return to work in the long run? Investigate what the best solution to the problem is. Look at both your operational needs and the employee's need to earn a salary.
Step #4: Give the employee an outcome
The solution depends solely on the employee's condition. This will include the likely prognosis, alternatives you've considered in the business, your operational requirements, and your ability to support the employee. You must also look at the extent to which you can afford to be generous and supportive.
The final outcome may be a dismissal. This will be when there's no alternative viable for the employee and you can't afford to keep him any longer. Deal with the dismissal as sensitively as you have up to now. Make sure the wording in your termination letter is compassionate. Before you dismiss him, make sure you follow a formal incapacity hearing.