Good day everyone, and welcome to another discussion in our "What if" series, where we bring you insights in the format of a "what if" question on the ever-evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today's discussion we will be unpacking:
What if an employer dismisses a medically incapacitated employee without investigating reasonable accommodation, such as alternative duties?
What are the legal considerations and implications?
Employers sometimes assume that once an employee is genuinely too ill to do the job, dismissal is simply the logical outcome.
But incapacity is not misconduct. When ill health is the reason, labour law is far less interested in blame and far more interested in one question:
did the employer do everything reasonable to keep the employee in work before termination?
A recent Labour Court judgment shows just how costly it is to skip that step.
In
Solidarity v Cape Peninsula University of Technology, the Court reviewed the dismissal of a long-serving administrator who had suffered from anxiety and depression, and later a finger amputation and wrist surgery.
Over several years, occupational therapy reports confirmed that her ability to meet deadlines under pressure was impaired, though it improved with treatment. She had periods of sick leave and light duties, and returned to full duties. Then, in 2023, the university convened an incapacity enquiry, held it while she was on approved sick leave and in her absence, and dismissed her.
At arbitration, the CCMA commissioner found the dismissal procedurally unfair, but substantively fair. On review, the Labour Court disagreed and set that finding aside. Let's look at why.
The first problem was that the employer's own case pointed in two directions at once. Much of the evidence was about poor performance: that the employee was unreliable, missed deadlines, and did not manage her workload. But no comprehensive medical assessment was relied on at the enquiry to establish the degree of her incapacity. The Court observed that the process looked far more like a disciplinary enquiry than a genuine incapacity enquiry.
If you dismiss an employee for ill health, you must actually prove the ill health and its impact, not dress up performance concerns in medical language.
The second, and decisive, problem was accommodation. Under the Code of Good Practice: Dismissal, an employer facing incapacity from ill health must investigate the extent of the incapacity, consider whether duties or working circumstances can be adapted, and explore alternatives short of dismissal. The onus sits squarely on the employer.
Here, the university leaned on transfers between departments that had happened years earlier, between 2015 and 2018. But the Court held those could not count as accommodation. They predated the relevant incapacity process, and they were driven by performance concerns, not by any attempt to accommodate a medical condition.
Reliance on old history does not prove an employer complied with its obligations during the actual incapacity process.
Then came the most significant point. The employee had tried to apply for medical boarding, an ill-health retirement benefit for which she was specifically insured. The employer refused to engage with that application, essentially because the matter had already been escalated to Employee Relations and management viewed the request as manipulative. Under cross-examination, the university effectively accepted that it had closed the door on a reasonable alternative to dismissal.
The Court drew on an earlier decision, which describes medical boarding as an obvious alternative to dismissal that must be fully explored. It did not matter whether the boarding application would ultimately have succeeded, or whether it had been raised earlier and not pursued. Once the employee raised it, the employer had to engage with it meaningfully.
Refusing to do so was a material failure to explore a reasonable alternative, and that made the dismissal substantively unfair.
The outcome: the review succeeded, the dismissal was declared substantively unfair, and the university was ordered to pay eleven months’ remuneration, just under R498,000, as compensation.
So what should employers take from this?
- First, treat incapacity and misconduct as separate processes. Incapacity requires a proper medical foundation, not a performance narrative.
- Second, the duty to accommodate lives in the present. Historical transfers or old arrangements will not discharge your obligation during the actual incapacity process.
- Third, genuinely investigate reasonable alternatives. If medical boarding, alternative duties, or adapted work is on the table, you must engage with it, even if you doubt it will work, and even if the employee raised it late.
- And fourth, remember where the onus lies. It is for the employer to show that dismissal was truly the last resort.
That brings us to the end of this week's discussion. Thank you for joining us. I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you. You can find us on social media, or email me at ross@masconsulting.co.za .
Until next time, good-bye.
