FAIR REASONS

A dismissal for incapacity can be for:

• Poor work performance
• Physical disability or ill health
• Incompatibility or where the employee is unsuitable to continue in the position
• Inability of the employee to be at work due to domestic, transport or personal problems.

When deciding whether a dismissal for incapacity was fair or not, the following must be considered:

• Whether the employee failed to work to a required standard
• Whether the employee was aware of the standard
• Whether the employee was given a fair chance to meet the standard
• Whether the employee has received counselling, guidance, and assistance to meet the standard
• Whether dismissal is the appropriate outcome for failing to meet the standard
• Whether the incapacity is serious and what the likelihood is of an improvement
• Whether the employee could be accommodated in an alternative position should one be available

FAIR PROCEDURES

Dismissals for poor performance will only be fair if the employer:

• Has given the employee proper training, instructions, evaluation, guidance and advice
• Assessed the employee’s performance over a reasonable period of time
• Investigated the reasons for continued poor performance
• Investigated ways of solving the problem without resorting to dismissal
• Gave the employee a chance to be heard before deciding to dismiss
• Considered employing the employee in an alternate and appropriate position should one be available

Dismissals for (temporary/permanent) ill health or disability will only be fair if the employer:

• Investigated the degree and duration of the injury or incapacity
• Considered ways of avoiding dismissal, for example, getting a temporary employee until the sick employee is better
• Tried to find alternative work for the employee to do
• Tried to adapt the work so that the employee could still do it
• Gave the employee a chance to be heard before deciding to dismiss

How badly ill or disabled the employee is (degree of incapacity) and for how long they are likely to remain ill or disabled (duration of incapacity), as well as the reason for the incapacity will be considered when deciding whether the dismissal is fair or not. More effort is expected of the employer if the employee was injured or got sick because of their work. (See Problem 18: Employee is injured on duty and loses the job)