Legislation offers a guide, but can only solve some of the challenges businesses face in effectively dealing with employee incapacity.
Employees can be incapacitated due to ill-health/injury or poor work performance, and South Africa has developed legislation that guide business owners – but knowing the law is only part of managing this process effectively warns leading HR and HCM solutions provider CRS Technologies.
Nicol Myburgh, head of HR business unit at CRS Technologies, says three sets of legislation must be considered when it comes to this issue, including the Labour Relations Act (LRA), the Occupational Health and Safety Act, and the Employment Equity Act (EEA).
“Each of these Acts contributes to- or covers the issue of employee incapacity in one way or another. While it is essential to know exactly how, this is only part of the management’s responsibility,” says Myburgh.
To illustrate, CRS Technologies explains that Schedule 8 of the LRA explains the procedure for incapacity. If an employee is temporarily unable to work the employer should consider the extent of the incapacity and consider alternatives to dismissal.
If the incapacity is more permanent in nature, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
“Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
In these cases the employer should seriously consider actions other than dismissal, for instance light duty or adapting the employee’s job to accommodate him/her,” Myburgh adds.
Disability is included as one of the listed grounds for discrimination and the EEA states: “”No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.”
CRS Technologies affirms that management must not only be aware of legal stipulations (and these are substantial), they have to also ensure compliance and that they instil an environment conducive to open, frank and honest discussion and consultation between the employer and employee.
Despite the extent to which labour law covers incapacity of employees and forces a company to be proactive, Myburgh believes that for the most part, businesses are not adhering to the law.
“Not because they don’t want to or refuse to adhere to it, they are just not aware that they are non-compliant, there are so many requirements with regards to incapacity and the process can get extremely complex, non-compliance is not due to anything untoward just ignorance. Unfortunately Employers usually find out too late that a mistake was made, they only realise this upon receiving an 7.11 CCMA application to appear for arbitration,” he adds.
For now, businesses will need to keep focused on legal developments and compliance, but especially how to handle what CRS Technologies describes as their toughest challenge: how to differentiate between incapacity and discrimination and what reasonable accommodation is in practice.