Answer to a question from a reader

Was my mother's dismissal from work fair according to the Labour Law and is the employer going to pay my mother's salary?

The short answer

On the face of it, it would certainly seem so but the actual decision of whether it was an unfair dismissal under labour law must be taken by the CCMA.

The whole question

Dear Athalie

My mother's employer asked her to apply for medical boarding, but the insurer rejected it on the grounds of a lack of medical evidence that she was permanently unfit to work. The employer asked me to come for a meeting with my mother. They later asked to speak to her without me and got her to cancel her application for medical boarding and opt for early retirement. The Motor Industries Fund then said she was not eligible for early retirement as she was only 53 years old. When I asked them why the employer had told her to cancel her medical boarding application, they said I should provide medical proof of my mother’s condition of severe dementia from the psychiatric staff of the hospital she has been attending.

The employer terminated her employment on 6 April 2021 but her last day of work was in October 2019. Is her employer supposed to pay her salary for the time in between?

Also, was the termination of her employment unfair according to labour law?

The long answer

You do not say whether you provided the medical evidence of your mother’s condition to the Motor Industries Fund, and if so, whether that evidence was sufficient to restore her application for medical boarding. Is her medical boarding still an option with the Retirement Fund? Or did they say that medical boarding was no longer an option since she had cancelled her medical boarding application and had applied for early retirement, which had been denied on the basis of her age?  

I will return to your question about whether the employer is obliged to pay her, after going into your second question of whether her dismissal/termination was unfair in terms of labour law. On the face of it, it would certainly seem so.  

In a Labour Guide article by Katlego Letlonkane of the legal firm Cliffe Dekker Hofmeyr, Letlonkane points out that, "An employer intending to dismiss an employee due to incapacity must do so in accordance with item 10 and 11 of Schedule 8 to the Labour Relations Act, No. 66 of 1995 (LRA), failing which, the fairness of such dismissal falls to be challenged." (Schedule 8 to the LRA embodies the Code of Good Practice in relation to dismissal.)

Item 11 of Schedule 8 is relevant to your mother’s case:

11: Guidelines in cases of dismissal arising from ill-health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider:

   (a)   whether or not the employee is capable of performing the work; and

   (b)   if the employee is not capable:

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

(iii) the availability of any suitable alternative work.

Letlonkane goes to clarify that before an employer can decide to dismiss an employee due to incapacity, the employer has to undertake what is called a "capacity enquiry" to assess whether the employee is capable of doing the work either in the position she has been occupying, or in any suitable alternative position. The employer must make a proper assessment of the employee’s condition to see if she is permanently incapacitated or not. If she is, the employer has to see if her job can be adapted or if she can be employed in alternative work, if such alternative work is available. 

If her work duties cannot be adapted and there is no possible alternative work available, a dismissal of a permanently incapacitated employee may be fair, as long as it was based on a proper assessment of the extent of the employee’s incapacity and if all possible alternatives to dismissal have been exhausted.

Letlonkane puts it like this: "An employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted." 

A Business Tech article says: "The Employment Equity Act protects employees in the workplace but only to an extent. Since the Act can’t possibly list all conditions, it leaves the employer with the power to decide which constitutes a disability and which not."

But as the Labour Court noted in Standard Bank v CCMA & others (2008), which included employees with mental health disabilities, the employer should be able to provide solid evidence that all viable alternatives were considered.

On the face of it, it does not seem that a proper assessment of your mother’s capacity was undertaken by the employer or that all alternatives were exhausted before the employer said she should apply for medical boarding.

Procedurally too, it does not seem fair for the employer to have asked to speak to your mother by herself, and then got her to cancel her medical boarding application and apply for early retirement. There is a very great difference in power between an employer and a general worker. That is why, in any type of disciplinary case, the employee may be represented by a trade union or by another employee. The idea is that an employee should not have to face her employer alone, without support of any kind. Since the employers had specifically asked you to accompany your mother to the meeting, and then asked to speak to her alone, it seems clear that they feared they would not get their way if you were there.

The actual decision of whether it was an unfair dismissal under labour law must be taken by the Commission for Conciliation, Mediation and Arbitration (CCMA). 

The CCMA will also decide if and what compensation must be paid by the employer.

In an article by Gordon Flanagan for the Consolidated Employers Organisation (CEOSA), he says that in terms of section 193 (1) of the Labour Relations Act, if a dismissal is found to be unfair, the employer can be ordered to reinstate or re-employ the employee. But if the dismissal was procedurally unfair only – in other words, the employer did not follow a fair procedure but there were substantive reasons for the dismissal – the employer will not be ordered to re-employ or reinstate the employee.

If the dismissal was unfair, but reinstatement and re-employment "are not appropriate in the circumstances", compensation should be granted.

In your mother’s circumstances, as she has severe dementia, reinstatement or re-employment would obviously not be appropriate.

Flanagan goes on to say that compensation will be granted where it is the only relief sought by the applicant. 

He says that in cases of unfair dismissal, the maximum amount of compensation that can be awarded is 12 months’ salary, and 24 months in cases of "automatically unfair dismissal". An example of an "automatically unfair dismissal" would be dismissal because of joining a trade union or dismissal because of taking an employer to court.

A article explains that Section 188 of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove:

  • that the reason for the dismissal is a fair reason; and 

  • that the dismissal was put into effect in accordance with a fair procedure. 

But the article goes on to say that the person presiding over the hearing has "a great deal of leeway in deciding whether the conduct of the employee or employer is truly unacceptable or unfair."

This is because, unlike in criminal law, which is clear about what constitutes a criminal offence, in labour law, what is unfair or not is not absolutely clear cut and each case must be debated and decided on its particular merits. 

The person presiding over the case also has a great deal of discretion in deciding what compensation would be fair in the circumstances. The commissioner must take the following factors into account, says Flanagan: the unique circumstances of the matter; the extent of the employee’s humiliation; the relationship of the parties and the employer’s attitude after the dismissal.

These are the CCMA’s contact details:

  1. CCMA National Office, 28 Harrison Street, Johannesburg 2001.

  2. (011) 377-6650 / (011) 377-6600.

  3. Fraud hotline: 0860 666 348.


Wishing you the best,

Answered on Dec. 1, 2022, 9:41 a.m.

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