By Lusanda Raphulu Friday, April 09, 2010

Incapacity on the grounds of ill health or injury might be temporary or permanent. Problems arise when the employee is absent for an unreasonable long period of time.
When that happens, the employer should investigate all the possible alternatives short of dismissal.

In the Labour Appeal Court case of Trident Steel (Pty) Ltd v Metal and Engineering Industries Bargaining Council and others, the court looked at the issue of permanent incapacity and an employer’s obligation to accommodate an employee who is suffering from a permanent disability.

The employee worked as a telesales assistant. Some six months after commencing employment, she developed severe neck pain. Her condition continued to worsen.
The employee consulted various medical practitioners and the consensus was that her work-station had caused the problem, which was further aggravated by her working on a computer for a full day.

The employer was sympathetic and tried to accommodate her by making adjustments to her computer and allowing her to work half a day for six months. It was intended that the altered working hours would be temporary but it soon became clear to the employer that the situation was likely to become permanent.

The employee had exhausted all her sick leave and since the employee’s position involved telesales, it was not possible to allow her to work half days on a permanent basis. Because there were no other suitable alternative positions, the employee’s services were terminated.

She referred a dispute to the relevant bargaining council. During the arbitration hearing she testified that since the position of receptionist did not require her to use a computer, it was a job that she could have performed for her former employer. Problem was, the position of receptionist was not vacant at the time.
Interestingly, the employee never suggested this alternative to her employer prior to her termination. Also directly relevant was that the salary paid to the receptionist was less than half of that paid to telesales assistants.

The commissioner found that the employer had not made sufficient attempts to investigate the extent to which the employee’s duties might be adapted or the availability of suitable alternative work. The Labour Court affirmed the findings of the commissioner.

The employer then appealed to the Labour Appeal Court, which held that an employer’s obligation to try and accommodate the employee did not require more than what could reasonably be expected from it in the circumstances; that if the employer was shown to have acted reasonably to try and accommodate the employee, it could be said that it had discharged its obligations. The decision of the Labour Court was overturned.

The decision has several ramifications, the most important of which is that, especially in cases of long term incapacity, an employer must attempt to adapt the employee’s work to accommodate the employee. However, there is a limit on what an employer can reasonably be expected to do.