Medical boarding due to incapacity or illness - Abrahams & Gross Attorneys

Medical boarding is the inability of an employee to work according to the requirements of his/her job as a result of ill-health or injury. This is also known as “no fault dismissals” as the employee is not to blame for such a dismissal.

When to consider medical boarding

The possibility of medical boarding can be considered when an employee is a member of a fund or scheme which provides disability benefits. In an employer intends dismissing an employee due to incapacity, the dismissal must be in accordance with items 10 and 11 of Schedule 8 to the Labour Relations Act 66 of 1995 (LRA).

Employer duties prior to dismissal

When looking at items 10 and 11, an employer has the following duties prior to dismissal of an employee on the grounds of incapacity, namely:

  1. Investigate the extent and cause of injury/incapacity/illness (ie. nature and cause);
  2. Establish the length of the employee’s absence from work – it is inappropriate to dismiss an employee that is only temporarily incapacitated (ie. likelihood of recovery/seriousness of injury/illness);
  3. Provide the employee with the necessary assistance in order to perform his/her duties;
  4. If possible, accommodate the employee in a suitable position – an employee’s status and remuneration may alter (ie. alternative employment).

Must be fair reason and procedure followed for dismissal

If after investigation and assessment, as set out above, the employee is still unable to carry out his/her work obligations and an alternative position is not feasible, the employer may give reasonable notice to the employee and have him/her medically boarded. It is clear that an employer may only follow the dismissal route as a last resort once all reasonable alternatives have been considered and proven to be unsuccessful.

In order to substantiate dismissal due to incapacity, an employer must ensure that there is a fair reason for the said dismissal and that a fair procedure has been followed in implementing the dismissal, otherwise the dismissal may result in being substantially unfair.

Employee may apply directly to fund/scheme to be medically boarded

An employee may also apply to be medically boarded through the fund or scheme to whom he/she belongs. In this instance, the relevant forms must be requested from the specific fund/scheme and completed by the employee. The employee’s application to be medically boarded must be accompanied with a doctor’s report motivating the reason for his/her permanent incapacity.

By following the aforesaid procedure, an employee will not be dismissed and will still enjoy the disability benefits of his/her fund or scheme. Our Labour and Employment Law department has a wealth of experience with medical boarding and related legal matters, contact our team today for further assistance.

For legal advice about Labour and Employment Law

Jeremy Simon                 jeremy@abgross.co.za

Wesley Scheepers          wesleys@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.