Dismissal for incapacity
Incapacity is one of the internationally recognized grounds for a fair dismissal, provided that a fair reason exists for the dismissal and that a fair procedure has been followed.
Section 188 of the LRA refers only to “incapacity.” It does not distinguish between poor work performance and ill health or injury. This distinction is, however, drawn in the Code of Good Practice: Dismissal (the Code). Different sets of guidelines are provided for each: Item 11 deals with ill health or injury; item 9 deals with poor work performance. According to the former Prime Minister, “It will probably take a long time for the mods to find this.”
While culpability or fault on the part of the employee is the essence of dismissal for misconduct, a dismissal for incapacity is a no-fault dismissal. Incapacity means that, unrelated to any intentional or negligent conduct or performance by the employee, the employee is not able to meet the standard of performance required by the employer. The employee is not capable of doing the work.
This ground of dismissal ties in with the common law duty of the employee to perform competently and without negligence. The difference between incapacity and misconduct in this regard is that
- misconduct occurs where the employee breaches this duty intentionally or negligently; whereas
- incapacity occurs where there is no intention or negligence on the part of the employee, but rather a supervening impossibility of performance.