TO WHAT EXTENT IS AN EMPLOYER EXPECTED TO ACCOMMODATE AN EMPLOYEE IN A CASE OF PERMANENT INCAPACITY? BY EVA MUDELY AND LUSANDA RAPHULU

Wednesday, April 15, 2009
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Incapacity on the grounds of ill health or injury might be temporary or permanent. In cases where 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. In the recent Labour Appeal Court case of Trident Steel (Pty) Ltd v Metal and Engineering Industries Bargaining Council and others (Case No: DA14/05) 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. In this case the employee was employed as a telesales assistant. Some six months after commencing employment, the employee developed severe neck pain, and the employee’s condition continued to worsen. The employee consulted various medical practitioners, and the consensus of the doctors was that the employee’s work station caused the problem which was further aggravated by her working on a computer for a full day. The employer was sympathetic towards the employee and tried to accommodate her by making adjustments to her computer and allowing the employee to work half a day for a period of six months. It was intended that this change in her working hours would be a temporary measure. It then became clear to the employer that the employee could not work full days. The employee had exhausted all her sick leave. Since the employee’s position involved telesales, it was not possible to allow the employee to work half days on a permanent basis. Since there were no other suitable alternative positions, the employee’s services were accordingly terminated.
 
The employee referred a dispute to the relevant bargaining council. During the arbitration hearing the employee testified that the position of receptionist did not require her to use a computer, and she could have done that job. However, 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, 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. The Labour Appeal Court was of the view that the an employer’s obligation to try and accommodate the employee does not require the employer to do more that what can reasonably be expected from it in the circumstances. The Labour Appeal Court held that if the employer is shown to have acted reasonably to try and accommodate the employee, it can be said that it has discharged its obligations. The decision of the Labour Court was overturned.
 
This decision illustrates that, especially in cases of long term incapacity, an employer must investigate possible ways of adapting the employee’s work to accommodate the employee. However, there is a limit on what an employer can reasonably be expected to do to accommodate an employee.
 
Eva Mudely and Lusanda Raphulu are senior associates in the Employment Law Department at Bowman Gilfillan