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Was your employee's driver's license revoked? Or his accreditation withdrawn? Now what...?

by , 19 June 2014
Here's what the law says you can do with employees who are no longer qualified for their jobs

Jack, your delivery driver, has always been an excellent performer. He's never given you a day's trouble. But now he's been caught driving drunk and his licence is suspended, which means he can't do his job anymore!

You already know it's not easy to just terminate an employee's services. But do you have to keep him on even though he can't do his job anymore?

Let's look at two cases where an employee isn't qualified to do his job anymore.

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The case: FAWU obo Meyer v Rainbow Chickens [2003] 2 BALR 140 (CCMA)
The Muslim Judicial Council (MJC) hires employees to slaughter chickens. They have to do so according to strict Halaal standards.
One of their employees was working at Rainbow Chickens. He admitted to the MJC that he didn't say the prescribed prayer over every chicken before slaughtering it. The MJC then took his accreditation away. So he couldn't perform his function in line with the standard Rainbow Chickens requires.
Rainbow contacted the MJC to ask them to reinstate the employee into the council. But MJC said the employee must discuss it with them directly.
Rainbow set up a disciplinary enquiry to deal with the matter, but postponed it to give the employee a chance to sort it out with the MJC. But, the employee didn't contact the MJC to sort out the problem. So he still wasn't able to do his job and Rainbow dismissed him for incapacity.
The judgement:
The Commissioner said the MJC, not Rainbow, set the standard of Halaal requirements. Rainbow had no choice butto comply with these standards. If it didn't, it would lose its Halaal certification.
The Commissioner also said incapacity is when it's impossible for an employee to do his job. He also said the incapacity was because of MJC's rules. And Rainbow Chickens can't use slaughterer's who aren't accredited. So the employee wasn't able to perform his function.
The Commissioner said the dismissal was substantively fair. And Rainbow was right to dismiss him. Keep reading for another case...

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The case: Mhlungu & another v Gremick Integrated Security Specialists (a division of Servest (Pty) Ltd) [2001] 22 ILJ 1030 (CCMA)
Germick hired three security guards. Not long after this, new regulations came into being. These said companies can only hire guards with training in line with the Security Regulations.
These employees didn't have this training. Gremick dismissed them to avoid breaking the law. But it didn't state the grounds for dismissals.
The judgement:
In arbitration, Gremick said the dismissals were for operational requirements. The employees said it was for incapacity.
The commissioner said the employees were right and the case was for incapacity. This is because it was temporarily impossible for the employees to do their jobs. So, the incapacity was because of the new regulations. Neither the employees nor the employer caused the problem.
The Commissioner said dismissals for operational reasons are because of changes in the employer's needs. In this case, the changes were because of new laws and not Gremick's requirements. So, it couldn't say the dismissals were for operational needs.
The Commissioner found said the dismissals were for incapacity coming from 'supervening impossibility of performance'.
The lessons you can learn from these cases...
-       If circumstance beyond your employee's control stop him from doing his job, it is a form of incapacity. This is called supervening impossibility of performance. For example, the security guards not having the training in the Gremick case; and
-       You can dismiss an employee who can't do his job anymore because of supervening impossibility of performance. This dismissal will be on the grounds of incapacity.
As you can see from these cases, dismissing Jack will be substantively fair. Just make sure you follow a fair and legal process. If you don't the dismissal will be procedurally unfair!

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