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BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address:
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. Go to: www.labourlawadvice.co.za
Too many HR/IR practitioners keep totally incapacitated employees on the payroll indefinitely because they are unsure of the law.
Section 6 of the Employment Equity Act prohibits unfair discrimination against employees on the grounds of disability. This means that an employer may not discriminate against an employee merely due to the fact that the employee is disabled. In fact the same Act obliges employers to find ways of recruiting and seeking ways to accommodate people with disabilities.
Furthermore, section 187(1)(f) of the Labour Relations Act (LRA) says that, “A dismissal is automatically unfair if …. The reason for the dismissal is …. that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility.’
The fact that disability is included in the above list means, for example, that if your production manager is permanently paralysed from the waist down in an accident (whether work-related or not) you cannot terminate his/her employment because you believe that a disabled manager will be unable to command the respect of the workforce. You would have to prove that this production manager is in fact unable to work before you could even consider terminating his/her employment.
In the CCMA case of Truter vs Mechem (GA865) the employee was hired as a filing clerk. She was promoted a few months later to the position of logistics manager after which she was involved in a serious motor accident that necessitated brain surgery and left her with speech difficulties. The employer terminated her services while she was still in hospital claiming that her contract had expired. The arbitrator believed that the real reason for the dismissal was the employee’s accident and awarded the employee eight months salary in compensation for the unfair dismissal. Eight months salary at the rate that a manager would be paid will have come to tens of thousands of rand.
The employer should have followed statutory procedure before
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