When going to work is illegal or impossible To what extent are employers expected to accommodate incapacitated employees?

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1 When going to work is illegal or impossible To what extent are employers expected to accommodate incapacitated employees? By Aubrey Lechwano Recent comments by the commissioner in Moeketsi v Spilkin Optometrist [2012] JOL 29 (CCMA) may have far-reaching implications for employers faced with cases of incapacity due to supervening impossibility of performance. In this matter the Commission for Conciliation, Mediation and Arbitration (CCMA) set out what may be expected of an employer in such matters. The applicant employee in this case was rendered incapable of tendering services to her employer as a result of being banned from a shopping centre in which her workplace was situated. The ban followed an accusation of theft against her by one of the tenants inside the mall. Having found that the matter was one of incapacity due to supervening impossibility of performance, the commissioner made the following comments, at paras 31 and 32, with regard to what, in the commissioner s view, would have been deemed reasonable steps by the employer in the circumstances: The respondent should have supported the applicant in the absence of any evidence against her. Why did [it] not instruct [its] attorneys to give the applicant legal advice and assistance? It might have been possible to interdict the shopping centre from banning the applicant. Her request for a transfer to one of the respondent s other branches fell on deaf ears. The respondent made no effort whatsoever to assist the applicant to save her job and career. Although not expressly stated in the award, one can imagine that the commissioner s comments were inspired by the statement of the Labour Appeal Court (LAC), per Davis JA, in Samancor Tubatse Ferrochrome v MEIBC and Another [2010] JOL (LAC) (which was referred to with approval in the Moeketsi case) at para 12, that a large organisation with deep financial pockets may be expected to take a more generous approach to the particular problem that arose in the Samancor case, namely to keep an incarcerated employee s position open until his return. The commissioner in the Moeketsi case quoted verbatim the foregoing passage from the Samancor case in Mamabolo v Protea Coin Group (Pty) Ltd [2011] 10 BALR 1044 (CCMA), which dealt with similar facts. In the Mamabolo case, apart from a theft conviction and a three-year prison sentence, the supervening impossibility of performance that impeded the applicant employee from tendering his services was the withdrawal of his security permit by the Private Security Industry Regulatory Authority as a result of the conviction and sentence. The CCMA held that the reason for the employee s total and permanent incapacity was the guilty finding against him for a serious crime.

2 Supervening illegality of performance Other cases of incapacity may arise where an employee is incapable of rendering his services due to supervening illegality of performance. In Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A), for example, the appellant was precluded from delivering as seller under a contract for the sale of uranium ore concentrates due to an export authority being refused by the Ministry of Mineral and Energy Affairs. The trial court judge found that absolute impossibility had supervened after the conclusion of the contract but that this did not relieve the appellant of its obligations under the contract (at paras 30 31). The Appellate Division held that the trial court s finding regarding the existence of supervening impossibility was correct and stated that delivery under the contract would have been illegal and performance by the appellant was therefore impossible in law (at para 34). However, the court held, at para 35, that the case was more accurately one of supervening illegality of performance due to the refusal of the export authority. It held that the difference between supervening impossibility, for example due to failure of the intended source of supply, and supervening illegality is one of substance and importance (at paras 35 36). Although the appeal was ultimately disposed of on other grounds, Howie JA stated in obiter that there appeared to be no reason of principle or logic why supervening illegality ought not to render a contract unenforceable on the grounds of public policy. In the employment context, a similar scenario would be where an employee s driver s licence is suspended in accordance with the impending Administrative Adjudication of Road Traffic Offences Act 46 of 1998 (AARTO ACT) due to the accumulation of demerit points for traffic offences. A further instance would be where the insolvency of an employee precludes him from performing his duties, for example practising as an attorney or doing business as a public trader. According to J Grogan (Workplace Law 10ed (Cape Town: Juta 2009) at 160), this is a form of supervening impossibility of performance and termination by the employer is treated as dismissal for incapacity under the Labour Relations Act 66 of 1995 (LRA). Employer obligations An important issue for employers is the extent to which they may be expected to accommodate or assist employees in such cases. The Samancor and Moeketsi matters provide some indication of what may be expected in cases with similar facts. However, as emphasised by the LAC in the Samancor matter, whether a dismissal is substantively fair depends on the facts of each case. Section 188(2) of the LRA provides: Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.

3 The Code of Good Practice on Dismissal in sch 8 to the LRA (the code) provides, in respect of incapacity on the grounds of ill health or injury, that if the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all possible alternatives short of dismissal. When considering alternatives to dismissal in cases of incapacity due to illness or injury, the code requires employers to consider, among others, the possibility of securing a temporary replacement for the ill or injured employee (item 10(1)). Further, the code notes that the courts have indicated that the duty on an employer to accommodate employees who are injured at work or incapacitated by work-related illness is more onerous (item 10(4)). Cases envisaged here, I submit, include those of supervening impossibility of performance (cases of imprisonment, etcetera) due to circumstances arising as a direct result of the employee performing his duties; that is, in the scope of employment. An example of this would be where a disciplinary sanction short of dismissal is imposed by an airline employer on an employee for luggage tampering, but, for the same reason, the Airports Company South Africa (ACSA) withdraws such employee s security permit, thereby rendering his continued employment with the airline untenable since the security permit is required to access the workplace. I submit that in these circumstances the employer should be expected to adopt a more generous approach to accommodate or assist the employee before a dismissal based on incapacity will be justified. This could, for example, take the form of accommodating the employee elsewhere in the employer s operations in a position where the impediment is irrelevant or making a reasonable effort to assist an employee to have the permit withdrawal reversed or overturned, especially where there are grounds for doing so. The LAC in the Samancor matter acknowledged the possibility of temporarily filling the incarcerated employee s position, particularly where the nature of such position renders it one that may be easily filled by a temporary employee (at para 14). In addition, in Trident Steel (Pty) Ltd v CCMA and Others [2005] JOL (LC), Revelas J stated: There were alternatives open to the applicant. It could have employed a temporary employee. In respect of items 10 and 11 of the code, which deal with cases of incapacity, Molemela AJA said the following in Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660 (LAC) at para 6: Importantly, if the assessment reveals that the employee is permanently incapacitated, the inquiry does not end there; the employer must then establish whether it cannot adapt the employee s work circumstances so as to accommodate the incapacity, or adapt the employee s duties, or provide him with alternative work if same is available. In National Union of Mineworkers and Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) Nugent J said the following, at 589, regarding an employer s duty to accommodate an incapacitated employee:

4 The circumstances may well be that the post can be adapted to account for the employee s incapacity without undue hardship to the employer, or that an alternative post may be found, or that the employee concerned can be given preference for the first suitable vacancy which occurs. These are but examples of the manner in which the employee s misfortune may be alleviated, and are not intended to be exhaustive. Each case will depend on its own facts. In my view it would not be fair to dismiss an employee without first exhausting the possible alternatives in consultation with the employee concerned and his union if this is required (my emphasis). For purposes of placing an employee in alternative employment, it will not necessarily be unfair to reduce his salary to that attached to the alternative position (Grogan (op cit) at 268). Further, demotions may be deemed fair if they are aimed at avoiding retrenchment or dismissal for incapacity (Grogan (op cit) at 79. See also A-B v SA Breweries Ltd (2001) 22 ILJ 495 (CCMA) at 521). Reasonable accommodation and discrimination In the context of disabled employees, the required standard is reasonable accommodation. Section 1 of the Employment Equity Act 55 of 1998 (EEA) defines reasonable accommodation as any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment. This standard implies an onerous obligation on employers, which essentially emanates from the anti-discrimination jurisprudence of various jurisdictions. The Constitution and s 6(1) of the EEA prohibit discrimination on the grounds of disability and dismissal on a prohibited ground of discrimination is automatically unfair (s 187(1) of the LRA). Thus, implicit in the duty to accommodate disabled employees is the employer s obligation to prevent discrimination. Consequently, if an employer fails to reasonably accommodate an employee with disabilities, the dismissal of that employee is not merely unfair but is automatically unfair (see Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 1239 (LC) at paras 79 80). An employer who unreasonably refuses to make any accommodation that falls short of unjustified hardship or who refuses to give reasons for not making an accommodation acts irrationally (the Standard Bank of SA case). Failure to make reasonable accommodation in the United States constitutes discrimination (the Standard Bank of SA case). Similarly, discrimination in the United Kingdom (UK) is defined to include treatment of a disabled person that the employer is unable to justify. An employer cannot justify treatment of a disabled person that amounts to direct discrimination. An employer also discriminates against a disabled person if it fails to make reasonable adjustments and cannot show that its failure is

5 justified (the Standard Bank of SA case at para 81, Pillay J citing the UK Disability Discrimination Act of 1995 (c 50)). The LAC, per Molemela AJA, in the Independent Municipal and Allied Trade Union obo Strydom matter related an employer s obligations in cases of ill health or injury under the code to those arising from the EEA and the unfair discrimination jurisprudence. It stated at para 8: The aforementioned obligations of the employer as set out in items 10 and 11 of schedule 8 to the LRA are interrelated with similar obligations in the Employment Equity Act 55 of In their work Employment Equity Law (2001): 7 3 to 7 4, J L Pretorius et al submit that the duty of reasonable accommodation of employees by employers is not confined to the Employment Equity Act but is a duty that is implied in the concept of unfair discrimination in a general sense and is one of the judicial and legislative tools for realising substantive equality. I agree with this submission. Conclusion The extent of an employer s obligation to accommodate employees in incapacity cases ultimately depends on the facts of each case and, as noted by Nugent J in the Libanon Gold Mining Co Ltd matter, the list of possible appropriate measures is not exhaustive. However, it may be justified in certain cases to impose a more onerous duty on employers to accommodate and assist employees beyond what is generally expected in cases of incapacity. This finds support in item 10(4) of the code. It may also be appropriate to impose an onerous duty on employers based on the LAC judgment in the Samancor case and, more recently, the CCMA award in the Moeketsi matter. The LAC has also suggested that an incapacitated employee could be given preference for the first suitable vacancy that becomes available (see the Libanon Gold Mining Co Ltd case at 589). It may also be helpful, I submit, to consider adopting and adapting the tenets of the principle of reasonable accommodation that applies in cases of disability (cumdiscrimination) to other cases of incapacity to ensure fairness and that employees are appropriately accommodated where they find themselves incapacitated due to factors beyond their control and in respect of which they may bear no fault. Aubrey Lechwano LLB (UFS) is an attorney at Mhlambi Attorneys in Welkom.