DISMISSAL UNFAIR IF REHAB IS NEEDED

The Employment Equity Act and the Labour Relations Act render it dangerous for employers to discipline employees who are performing or behaving badly due to illness or disability.

In Black Mountain vs CCMA (2005 1 BLLR 0001) the employee was dismissed for damaging property while driving under the influence of alcohol. The Labour Court decided that:

• The employer should have allowed the employee to go for rehabilitation

• The dismissal was unfair

• The employer was required to reinstate the employee with 18 months’ back pay

• The employer was to pay this money to the employee with interest.

In the case of Mthethwa vs Capitol Caterers (2007, 5 BALR 469) the employee was dismissed after he was off ill from work for two weeks. The CCMA ordered the employer to reinstate him with full back pay because the employer had failed to follow the incapacity laws.

The above cases make it clear that:

• Sick employees are strongly protected from unfair treatment aimed at their disabilities

• Alcohol abuse can be seen as an illness in South African law

• Treatment must be considered before dismissal of a sick employee can be considered

• The incapacity procedure prescribed by law cannot be ignored.

Therefore, all employers are advised to:

• Explore every alternative to dismissal before considering terminating the employment of a sick employee;

• Formally place on record every step taken in the above process;

• Ensure that the entire process is planned and managed by an expert in labour law and industrial relations.