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Incapacity hearings and disciplinary hearings are two completely different procedures, but they can end in the same result: being dismissed. Is your dismissal fair? How is an incapacity process different from a disciplinary process? Scorpion Legal Protection explains.
Incapacity hearings are held when an employee is unable to perform their job due to inability. This could be for a number of reasons including ill health, injury or poor performance, because you don’t know how or don’t have the skills to perform certain duties, other personal reasons like dealing with divorce, death, etc and struggling with the impact of these personal life events or factors like foreigners whose work permit expires. You are not being blamed for doing something wrong. Incapacity based on poor work performance, injury or ill-health is recognised in the Labour Relations Act (Schedule 8 – Code of Good Practice: Dismissal).
In disciplinary hearings, you have intentionally failed to perform a duty, were negligent in carrying out your duties, deliberately broke the employer’s rules or did something illegal, for example, stealing from the employer. You have broken the employer’s rules – the trust relationship – and are being blamed for your wrongdoing. These are all classified as cases of misconduct.
One of the main principles in carrying out incapacity procedures is to give the employee a chance to fix the problem. If it’s an issue of poor performance due to lack of skills, for example, the employer should be able to assist the employee by providing training, etc. In issues of ill health, the employer must try to accommodate the employee where possible by making changes to the workplace or in their position. In cases where work permits or drivers licences have expired, the employer should give the employee time off through paid or unpaid leave to apply for, renew or obtain their work permit or driver’s licence.
The incapacity process may differ according to what the issue is. The first step generally is where management calls you in to discuss the problem with you informally. They will tell you what areas of your performance are problematic, where you are not meeting company standards and give you a chance to explain your side of the story. Through this discussion, the employer will come up with an action plan for appropriate and practical methods to improve your performance within a certain time frame (usually not longer than 12 months). You’ll be asked to sign this action plan as acknowledgment that you received it, understand what it means and when you will be evaluated next.
If you don’t or can’t meet the company standards and fix the identified performance problem according to the action plan, then the employer may call you for an incapacity hearing. This is now a formal hearing and you must be given notice before the hearing so that you can prepare. You are allowed to have another employee sit in with you and present evidence or witnesses that will support your case. The chairperson must evaluate the case fairly and decide if you are able to continue in your current position, should be moved to a different more suitable position or if there is no alternative but to dismiss you. You will get a written summary of the findings. You can lodge an appeal in writing to the chairperson if you are unhappy with the decision – we advise doing so as soon as possible if this is your intention.
If the employer does not follow an incapacity process and simply dismisses you, your dismissal will be seen as unfair and you can lodge a case at the CCMA.
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If you have a query, follow Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month from 11:30- 13:30).
* This is only basic paralegal advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 29 September 2021
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