Incapacity generally falls under two categories, namely:
Poor work performance
Where a domestic worker repeatedly fails to meet the performance standard required of him/her, it is necessary to afford him/her a reasonable opportunity to meet those standards
This, in turn, involves identifying the performance standards required of the domestic worker and providing guidance and counselling before resorting to dismissal.
Accordingly, where a domestic worker is not performing sufficiently it is advisable to convene an informal meeting to discuss the areas where improvement is required. The items that were discussed in that meeting should be recorded in a diary as a contemporaneous note – i.e. a dated note made at the time of the discussion.
If that informal meeting does not result in the issue being resolved, a further meeting should be convened. The aim of this meeting should be to identify the cause of the performance issue and to agree to solutions for the particular problems. The domestic worker should also be admonished that the failure to meet the required standard of work may result in dismissal.
The discussions held in the meeting and the solutions discussed should also be recorded in writing and provided to the domestic worker after the meeting. This will avoid any dispute regarding the performance standards required or the consequences of not meeting those standards.
Where a domestic worker repeatedly fails to perform to the required standard notwithstanding such interventions, a so-called incapacity hearing should be convened where the domestic worker is entitled to state a case in response to the allegations of poor work performance. As is the case with misconduct, this is not required to be overly legalistic. All that is required is that allegations of continued poor work performance are put to the domestic worker (specific examples of poor work performance should be given).
After considering the case of the domestic worker in response to the allegations of poor work performance, the employer should communicate the outcome to the domestic worker. If the employer decides to dismiss a domestic worker, this should be done by way of a notice of termination of employment.
Employees dismissed for poor work performance are entitled to
Employees who are dismissed are entitled to claim UIF Unemployment Benefits (click to see Chapter 7 above).
Ill-health or injury
Given the poor state of public health in South Africa, domestic workers often suffer from serious and/or poorly treated illnesses and injuries which may render them incapacitated in respect of their jobs.
Incapacity dismissals for medical reasons occur when an employee is incapable of performing the work as a result of an illness or injury. Such incapacity may either be temporary or permanent in nature.
In the case of temporary incapacity, the Code of Good Practice: Dismissal requires employers to investigate the extent of the incapacity and, if the employee is likely to be absent for a time that is unreasonably long, the employer should investigate all possible alternatives to dismissal. This may include obtaining temporary replacement labour from an employment service, etc.
It will often be considered unfair to dismiss an employee who will only be temporarily absent for a short amount of time (i.e. while undergoing chemotherapy treatment or recovering from an operation).
Employees who are temporarily incapacitated and who have exhausted their paid sick leave are entitled to claim UIF Ill-Health benefits (click to see Chapter 7).
In the case of permanent incapacity, the Code of Good Practice: Dismissal requires employers to investigate the extent of the incapacity and ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
The above may include, for example, changing the hours of work of a domestic worker suffering from a chronic illness in order to reduce the amount of strain caused by working long hours or not requiring the domestic worker to perform certain physically arduous tasks. It may also be possible to obtain equipment to assist the employee in performing his/her duties.
The investigation referred to above must involve the domestic worker and he/she should be invited to state a case in relation to any issues of incapacity including in respect of alternatives to dismissal.
If there are no suitable alternatives, and after having considered the employees case, the employer can proceed to dismiss the domestic worker.
Employees dismissed for ill-healthy or injury are entitled to
Employees who are dismissed are entitled to claim UIF Unemployment Benefits (click to see Chapter 7 above).
