“We, at Global Business Solutions, are proud to welcome Elise on board as a consultant as we know that she will add enormous value to you. Here is her first correspondence focused on incapacity in the workplace.”
The Labour Relations Act (LRA), 1995, Schedule 8: Code of Good Practice: Dismissal (11) clearly sets out the considerations that need to be taken into account when determining the fairness of dismissals arising from ill-health and or injury. Similarly, ill-health retirement criteria are set out in the wording of pension and provident funds or the disability insurance contract taken out by those protecting themselves financially in the event of ill-health or injury preventing them from working.
All of the above-mentioned guidelines and criteria are essential in assisting those responsible for making fair and reasonable decisions regarding the future employability of a working individual who has suffered ill-health. Although much has been written about incapacity dismissals owing to ill-health and injury since the LRA came into being, little appears to have been practically shared regarding what needs to be done ‘on the ground’ to assess the true occupational capability of an individual falling into this domain.
Once the medical condition and the current, future and residual impact of the condition – and its treatment – on an individual’s functionality have been determined, one is left with the task of marrying this reality with the work environment. This requires an intimate understanding of occupational skills, the transferability thereof and the on-going ability of the individual to function in the workplace taking unique work and personal factors, as well as ergonomics, into account.
Unless the decision makers are well versed, experienced and specialised in understanding the impact of ill-health on function, alongside the demands of the world of work across a multitude of disciplines, the realistic determination of future employability is challenged.
Job descriptions, the requirement of outputs in the specific work environment, the assumption of the cost and inconvenience in re-training and or adapting the work space and – most of all – the failure to identify and extract skills that can be used in an entirely different way often tend to limit the determination of whether an individual remains employable or not. Furthermore, the ability to visualise and apply the use of skills in a different employment context can be missed completely. It stands to reason therefore that this kind of assessment is something in which specialists ought to become involved, thereby relieving the employer or the pension/provident fund trustees of the task.
The responsibility placed on the shoulders of those who are required to make decisions on incapacity dismissals owing to ill health or injury cannot be under-estimated. Their task is more onerous than immediately meets the eye. When the ombudsman of various sectors, the CCMA, the Labour Court or the High Court are required to make a ruling on the fairness of an incapacity dismissal the answers to the questions asked ultimately lie in the detail and the reliability of the evidence.
Such evidence is best provided by experts in occupational incapacity matters. These are people who specialise in realistically aligning the uniquely individual specifics of residual functional ability with the demands of the workplace. While it is acknowledged that there are circumstances where the required expertise may reside within the walls of the employer itself, this would most likely be the exception to the rule.
Practically speaking, the first step in determining whether the relevant requirements of the LRA have been met is to ensure that the correct expertise is engaged from the outset of the incapacity-management process.