Opinion Piece; by Jaco Swart
In the recent award of Theresa Mulderij v The Goldrush Group (case number GAJB 24054-21), the CCMA Commissioner found that the dismissal of the employee based on incapacity was substantively fair.
It was not disputed that the employer followed the procedures as set out in the directive from the Department of Employment and Labour, and conducted an intensive, three month long, consultation exercise. Therefore, procedural fairness was not in dispute, although possible grounds to have done so did exist.
The ruling by the Commissioner that the employee in question was permanently incapacitated, and could therefore be dismissed, seems to be at odds with prevailing legislation and case law.
The Labour Relations Act, in the Code of Good Practice on Dismissals, which has been declared by the courts as binding, recognises only two types of incapacity dismissals.
The first is ‘poor work performance’, which relates to the employee's inability to perform his/her duties to a specified standard.
The second is ‘ill-health incapacity’, which relates to the physical inability of an employee to perform his/her duties, as a result of ill-health or injury.
A third form of incapacity, that has been recognised by the courts, is a type of ‘general incapacity’ which, per example, deals with matters of incompatibility or incapacity due to a failure to comply with a statutory requirement, i.e. failure to renew certification from a regulatory board.
The arbitration award in this matter does not indicate which form of incapacity the Commissioner viewed to be applicable. The Commissioner simply stated that:
"I can only conclude that the Applicant is permanently incapacitated on the basis of her decision to not getting vaccinated and implication refusing to participate in the creation of a safe working environment."
Be that as it may, irrespective of which form of incapacity the Commissioner considered to be applicable, the following principle applies to all of them:
- The incapacity must make it impossible for the employee to perform his/her duties.
It should be common cause that not being vaccinated does not, in any way, impact on the inherent ability of an employee to perform his/her duties. What is preventing the employee, in this instance, from performing her duties, is the workplace rule or policy that the employer has implemented. This in no way speaks to the capacity of the employee to perform her duties, which she had done without being vaccinated, since the inception of the pandemic.
Incapacity dismissals, by their very nature, are no-fault dismissals. This means that no fault is attributed to the employee in respect of the reason for dismissal. However, the quoted paragraph above smacks of fault being laid at the feet of the employee.
It seems therefore that, in our view, the Commissioner misconstrued the true nature of the inquiry, conflated incapacity and misconduct, and incorrectly found that the employee was fairly dismissed for incapacity. In addition, in our view, she exceeded her powers as a Commissioner by considering an internal memorandum by a Judicial Officer to his peers, which carries no legal weight, to justify her decision. These irregularities render the award reviewable by the Labour Court.
Jaco Swart is the National Manager at the National Employers' Association of South Africa (NEASA).