While working on a building site two weeks ago, Piet was standing on a ladder which slipped. He fell and broke both arms. This is only a temporary disability, but he cannot do any work until the broken arms have healed, which could be another 6 weeks.

When he telephones his employer, she tells Piet that his job has already been filled. The employer says she cannot wait for Piet to get better. Piet says this is unfair because the accident was not his fault. He comes to you for help.

What Does the Law Say?

The employer can only dismiss Piet for a good reason and by following proper procedures. Piet has a right to be reinstated when he is well again. Piet can also claim Compensation because the accident happened while he was working. The employer should have reported the accident to the Compensation Commissioner.

(See: Dismissals; Compensation Fund)

If Piet stays off work for a long time and is unable to even do lighter work, then the employer can go through the correct dismissal procedures and dismiss Piet for incapacity because he is unable to do his job.

If an employee is permanently disabled as a result of an injury at work, this employee will never be able to perform his or her old duties again. If the employee can do light duties, then you should ask the employer to give the employee light duties. It may be very difficult for a permanently disabled employee to find work anywhere else.

What Can You Do?

Because the disability is only temporary, you should telephone the employer and ask her to employ the other person in Piet’s place on a temporary basis only – until Piet recovers. If the employer dismisses Piet, you can refer the matter to the CCMA as a claim for unfair dismissal.

(See: Solving Disputes Under the LRA)