Numsa successfully defended a member who was dismissed for incapacity arguing that the company had not followed the relevant LRA guidelines. Mvuleli Magawulana defended him and reports on how the case was won.
Lear Corporation dismissed a Numsa member, James White, purportedly on the basis of incapacity. Lear Corporation had employed White since February 1996. The company became aware that he was an epileptic in or around 1997. White was employed as a quality inspector at the company’s final inspections. In August 2003, the employee was demoted to line feeder (operator) after a disciplinary enquiry found him guilty of poor work performance after he had approved a faulty headrest. The company suspected that the employee’s misconduct might have been caused by the employee’s epileptic condition.
However, the company did not conduct any medical investigations about the employee’s health condition as required in terms of the LRA guidelines related to discipline for incapacity. (see box) On or around September 16 2003 the employee accidentally burnt himself with hot water that spilt from an urn. The company again suspected that he had burnt himself because of suffering an epileptic fit.
On November 19 the company summoned him to an incapacity enquiry. They alleged that he posed a risk to the company and his fellow employees. The hearing ruled that White was a big risk to the employer in terms of the Occupational Health and Safety Act, 35 of 1993 and he was dismissed on December 3 2003. Numsa referred his unfair dismissal dispute to arbitration by the Motor Industry Bargaining Council. On November 26 2004 and January 26 2005 senior commissioner, Wickus Rikert, ordered Lear Corporation to reinstate White on the same terms and conditions that governed his employment prior to his dismissal. He also ordered the company to compensate him for 3 months.
The Award also noted that if Lear Corporation was convinced that the employee posed an undue risk, it should first gather reliable medical and occupation information prior to taking a decision whether or not to dismiss the employee.
Mvuleli Magawulana, was a Numsa national legal officer until his resignation in 2005
Schedule 8 of the Labour Relations Act Code Of Good Practice: Dismissal
10. Incapacity: III health or injury
(1)Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal.
When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, 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.
(2) In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.
(4) 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.
11. Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should consider-
(a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable- (i) the extent to which the employee is able to perform the work; (ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and (iii) the availability of any suitable alternative work.