What is an employer to do if a medical condition precludes a staffer from fulfilling her responsibilities?

If a staff member has a medical problem and can’t carry out her duties as before, what are the obligations of her employer? Is the employer obliged to ensure she loses weight, and that she visits a biokineticist and a dietician, as recommended by an occupational therapist? Or is it the responsibility of the staffer herself to take that action?

Litigation in the labour court by LegalWise has produced the answer.

LegalWise had employed N P Shezi as a filing clerk. Her job included carrying boxes and files up and down three flights of stairs, tasks that gave her back pain. When a chair she was sitting on at work collapsed, x-rays showed muscle spasm aggravating an existing lumbar spine condition.

Some days later she returned to work. Shezi was given lighter tasks and LegalWise helped her apply for a temporary disability benefit. An occupational therapist also assessed Shezi, concluding that she should do only light work as she no longer had the functional ability required. Shezi continued to struggle with pain management, and her work hours should be reduced to six hours a day on three days a week. In addition, the therapist prescribed exercise, chiropractic treatment, a biokinetic programme and significant weight loss.

After her special leave ended, a second occupational therapy assessment showed insignificant change to her condition.

A special incapacity inquiry considered whether she could do the work for which she had been employed, how the company could accommodate her and whether alternative work was available within the company.

That inquiry showed that while the company needed a filing clerk for eight hours a day, she could only work two or three hours a day, and the only suitable vacancy involving less strenuous work was too far away for her to consider. The company then terminated her employment, prompting Shezi to refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The arbitrator took a tough line, saying the code of good practice obliged the employer to help a staffer who was injured on duty. Further, the company should have helped Shezi by ‘assisting her to see a dietician and a biokineticist and supporting her losing weight.’ The company should also have bought her a new chair.

While the incapacity hearing procedure was fair, her dismissal was substantively unfair, said the arbitrator, who then made a reinstatement order and ordered LegalWise to pay her about R120 000.

LegalWise challenged this outcome in the labour court, pointing to a number of problems they had with the CCMA decision. For example, was it reasonable to make the company partly responsible for implementing the recommendations for her improved health? Or to hold that LegalWise ought to have bought her a special chair?

The court said the arbitrator’s finding were unreasonable. There was no onus on an employer to take ‘positive steps’ to make sure an employee complied with recommendations to improve her health. That would be an ‘unreasonable burden’ for employers. And what would be the point of buying a special chair when it would not have helped her walk up and down stairs or carry files?

There was also a contradiction in the arbitrator’s findings. She had chastised the company for not helping the employee implement various medical remedial steps. But the arbitrator also found there was no compelling evidence that the employee was incapacitated and unable to carry out her duties.

As that contradiction showed the arbitrator’s ruling was defective, the court could reconsider the outcome. Quoting earlier labour court decisions that reinstatement was not appropriate for incapacitated employees if return to the workplace would worsen health vulnerabilities, the judge held the dismissal had been fair.

  • Financial Mail, 12 September 2019