Legal question: Dismissal on the grounds of disability owing to ill health or injury

Question: I work at a guesthouse in Piet Retief and live on the premises. My duties include, among other things, receiving and booking in the guests, preparing breakfast, cleaning the rooms and making the beds. Although I can perform administrative tasks, my employer seldom lets me do admin. My problem is that I injured my lower back when I was younger and as a result of this injury I can’t get out of bed some days. Can my employer dismiss me because of this?

Answer: Disability owing to ill health or injury can be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer must investigate the extent of the illness or injury.

If the employee will be absent from work for an unreasonably long period, the employer must look into all possible alternatives, except dismissal, such as appointing a temporary substitute for the incapacitated employee.

In cases of permanent disability, the employer must investigate the possibility of assigning the employee alternative duties or adusting the employee’s duties or working conditions to make provision for his or her disability.

During the investigation, the employee should be given the opportunity to be heard and to be assisted by a trade union representative or a coworker.

The degree of the disability is relevant to determining the fairness of dismissal. The cause of the disability could also be relevant.

Someone who is appointed to determine the fairness of dismissal owing to ill health or injury should take the following into consideration:

• Whether or not the employee is able to do the work;

• the degree to which the employee is able to do the work;

• the degree to which the employee’s working conditions can be adjusted to make provision for his or her disability; or

• adjustments to the employee’s duties.