Guideline for a Mandatory Code of Practice > Management of Medical Incapacity due to Ill-Health and Injury

(This annexure is for informational purpose)

The following legislation should be considered where an employee with medical incapacity is identified and who requires some management program because he/she cannot do his/her work;

1.	The Constitution of South Africa

The Constitution is the highest legal authority in South Africa. It includes a Bill of Rights setting specific protections.

The Labour Rights are as follows:—

•	Equality (Section 9)

•	Human Dignity (Section 10)

•	Labour Relations (Section 23)

2.	General labour rights

The general labour rights include the right to:

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Work.

•	Fair remuneration and conditions of service.

•	Access to training.

•	Belong to a trade union.

•	Bargain collectively.

•	Withhold labour.

•	Protection of safety and health.

•	Security against unemployment or injury on duty.

•	Job security.

•	Protection against unfair labour practices.

•	Protection against unfair discrimination.

3.	Common law principles

Rights not specifically protected in current legislation may offer protection in common law principles. It is important to consider such principles that may be applicable on specific cases. Generally employee rights are far more governed and protected by legislation. Equally so are those of employers. It is important to note that such protection is generally applicable on independent contractors as they are not defined as employees by the applicable legislation.

4. Employment contract

The duties of the employer are:

1.	To pay the employee for work done.

2.	Provide safe and healthy working conditions.

3.	To provide the employee with work.

4.	Not to make the employee do work of a lower status than the employee was employed for.

5.	Not to contract the employee to another employer without the employee's consent.

The following are duties of the employee:

1. To perform his/her work diligently.

2. To obey all reasonable orders and work rules.

3. Not to deal dishonestly with the property of the employer.

4. May not compete with the employer in respect of business.

5. Labour Relations Act: Requirements of Schedule 8

The Labour Relations Act, 1995, by means of its Code of Good Practice (Section 10 of Schedule 8), codifies a process relating to an employee's incapacity due to ill health or injury. Provision for the Code is made in Section 203 of the LRA, which also reads that "any person interpreting or applying LRA must take into account any relevant code of good practice. The Dismissal Code has specific provisions for "Ill-health and injury", and a body of practices which have become known as 'incapacity management' has evolved over time based on these provisions in the Dismissal Code. It differentiates between good practices in situations of temporary or permanent incapacity. In terms of this Code, an employer's obligation can be summarised as follows:

•	An employer has to determine whether an employee is temporarily or permanently unable to work.

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If the employee is temporarily unable to work, the employer should investigate the extent of the incapacity to find alternative solutions short of dismissal, to accommodate the employee. This includes investigating the nature of the job, the expected length of absence, the seriousness of the illness, and the possibility of a temporary replacement.

•	If the incapacity is permanent, the employer should ascertain the possibility of securing alternative employment or adapting the duties or work circumstances of the employee to accommodate such employee's incapacity

•	In any investigations related to incapacity, the employee should be allowed to state a case in response and to be assisted by a trade union representative or a fellow employee. It is suggested that all incapacity proceedings be conducted in consultation with the incapacitated employee

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The degree of incapacity is relevant to the fairness of any dismissal, whether for temporary or permanent incapacity. The cause of incapacity is relevant and, if the cause arises from a working circumstance, the duty of an employer to assist such an employee is greater. In the case of certain kinds of incapacity, such as alcoholism, drug abuse and post-traumatic stress disorder, counselling and rehabilitation may be appropriate steps for an employer to consider.

•	An employer should, at all times during assessments, consider whether the employee is capable of performing the work and:

o	If the employee is not capable, the extent of the incapacity.

o	The extent to which the employee's work circumstances may be adapted to accommodate the disability or, where this is not possible, the extent to which the employee's duties may be adapted; and

o	The availability of any reasonably suitable alternative work.

o	The Labour Court has found that in order to accommodate an employee rather than to dismiss, reasonably suitable alternative employment at a reduced salary and/or job-grading is acceptable, and

o	Ultimately either the CCMA or the Labour Court will determine if any action in terms of this policy was procedurally and substantively fair.

6. MHSA and regulations (Act 29/1996)

Section 7 of MHSA prescribes that an employer should staff a mine with due regard to health and safety. It further prescribes that every employer must:—

•	ensure that every employee complies with the requirements of this Act;

•	institute the measures necessary to secure, maintain and enhance health and safety;

•	provide persons appointed under subsection (2) and (4) with the means to comply with the requirements of this Act and with any instruction given by the inspector;

•	consider an employee's training and capabilities in respect of health and safety before assigning a task to that employee; and

•	ensure that work is performed under the general supervision of a person trained to understand the hazards associated with the work and who has the authority to ensure that the precautionary measures laid down by the employer are implemented.

Section 11 of MHSA prescribes that an employer should assess and respond to risk. It further prescribes that every employer must:

•	Identify the hazards to health or safety to which employees may be exposed while they are at work;

•	assess the risks to health or safety to which employees may be exposed while they are at work;

•	record the significant hazards identified and risks assessed; and

•	make those records available for inspection by employees.

•	determine all measures, including changing the organisation of work and the design of safe systems of work, necessary to:

(a)	eliminate any recorded risk;

(b)	control the risk at source;

(c)	minimise the risk; and

(d)	in so far as the risk remains:

1.	provide for personal protective equipment; and

2.	institute a programme to monitor the risk to which employees may be exposed.

•	conduct an investigation in terms of section 11(5) when serious illness or life-threatening conditions occur.

7.	Employment Equity Act

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The EE Act identifies "people with disabilities" as a designated group, to remedy decades of unfair discrimination, and to redress unjustifiable imbalances in their representation in the workplace, as compared with black people, woman and males. For employers the Act therefore establishes two overall obligations in relation to people with disabilities to:

•	identify and remove unfair discrimination; and

•	increase representation.

To achieve these, the Act requires designated employers to take specific steps and actions. Each of them needs to be understood, planned and then incorporated into the organisation's Employment Equity Plan to be implemented in line with an agreed strategy over time. These requirements are the following:

•	increase the representation of employees with disabilities;

•	audit for unfair disability-related discrimination;

•	conduct a workforce disability profile;

•	afford reasonable accommodation;

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train;

•	develop; and

•	retain employees with disabilities.

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The requirements of the EEA means that suitably qualified people with disabilities cannot be unfairly discriminated against or be subjects of questionable or unfair labour practices in employment. It is expected of the employer to report on this from time to time in the prescribed employment equity report.

Apart from the risks, equitable employment practice is the right thing for leading corporate citizens to aim for according to the strategic objectives identified by the King 3 Report.

Now the following should apply in relation to suitably qualified people with disabilities. They should be:

•	hired they must be offered appropriate employee benefits; and

•	retained where appropriate.

8.	Relevant codes of practice

8.1	SA Disability Code

In addition to the EEA, the Department of Labour has published at the end of 2002 the final Code of Good Practice on Key Aspects of Disability in the Workplace. Its objective is to guide employers in their efforts to attain equity for people with disabilities. This Code must be read together with the HIV/AIDS Code of Good Practice issued earlier by Government.

8.2 International Labour Organisation's (ILO) Code of Practice on Disability Management

In late 2000 the first International Labour Organisation (ILO) Code of Practice on Disability Management (CGPDM) was announced. It outlines:

"fair and equitable treatment of workers with disabilities, ...and the key roles and responsibilities of all the process stakeholders: employee, employer, trade unions, insurance providers. The policy focuses on return to work and job retention."

The ILO Code must be read together with the EEA above as it outlines for organised labour and employers how to "retain" people with disabilities as required by the EEA. The ILO Code was ratified by the SA-government for implementation alongside our own SA Disability Code

9.	The ILO recommendation

The guideline recommends that "every employer should have a plan to minimise the impact of disablement on the people it employs".

Mine Health and Safety Act, 1996 (Act No. 29 of 1996)

Regulations

Guideline for a Mandatory Code of Practice

Management of Medical Incapacity due to Ill-Health and Injury

Annexure A: Legislative framework