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Jonathan's been booked off with an injury for 2 months... What are your rights when an employee is incapacitated?

by , 08 March 2016
Jonathan, a construction foreman, broke a vertebra in his back in an accident while on holiday. He's used up all his sick leave - and you've given him some extra time off.

You even let him take unpaid leave. But he's been booked off again!

When can you say enough's enough? You've done what you can, but your business can't cope with these extended absences anymore.

In a case like this, you need to decide if it's become a case of permanent incapacity. But you can't just dismiss him... First, you need to see what is unreasonably long...

The abscondment solution you've been waiting for
AWOL! Your guide to dealing with employees who abscond is a step-by-step guide on the process you need to follow to make sure you deal with absconded employees correctly and effectively.

With it, you can confidently deal with absconding employees while protecting yourself and your company from an unfair dismissal case.

Discover more here...

4 Factors to help you decide whether absence is unreasonably long

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 specialised skill where there's no-one else in the company who can do this job?
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 .

3. How serious is the incapacity?
Check what tasks your employee can and can't perform. If the incapacity isn't that serious, the employee could come to work and perform certain aspects of her job, or even most of them. Check with the doctor that this is possible and specifically what functions you can and can't expect her to perform.

4. Is there a possibility the employee can be temporarily replaced?
For some jobs it's easy to hire 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 specialised or scarce skills – it's not, as people with those skills are generally all in permanent employment.

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 think about:
• The nature of the job. What does it involve and how's the illness or injury preventing him from doing it properly?
• How much longer his attendance at work will be erratic. Get his doctor to give his opinion of how long this will continue. You can send him to an expert of your choice, at your cost, if you want an independent assessment.
• 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 indefinitely, you have to consider the impact on the business.
• 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.
• 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. But you're not obliged to create a vacancy.
• Consult throughout and let him know the seriousness of the situation - 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.


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