The short answer
The employer is not obliged to retain an employee who is permanently incapacitated if her working circumstances cannot be adapted.
The whole question
Dear Athalie
My mother worked as a security guard until recently when she fell ill. She was hospitalised for a month and the doctors have said that she will need to be kept on oxygen. When I went to her workplace to report this, they terminated her contract and told me to apply for UIF on her behalf while they apply for disability benefits.
Is this the correct procedure? I read elsewhere that the employer should pay the employee while awaiting the outcome of the application. It pains me that my mother's pension fund, retirement fund and death benefits are now also cut because her contract was terminated.
The long answer
I don’t know what industry your mother was employed in, but this is what the Metal Industries Benefit Fund Administrators (MIBFA) has to say about medical boarding:
“If the Employee does not resign following his / her ceasing work, Employers should ensure that the Employee's name is retained on the Sick Pay and Retirement Fund contribution returns, even where no wages are paid during the waiting period. Employers should endeavour not to discharge an Employee until advice is received from the Scheme that a permanent disability benefit has been awarded.”
If your mother was employed in the Metal Industry, it seems that she should not have been dismissed until the permanent disability benefit had been awarded.
But as your mother’s employment was terminated following the report that she would need oxygen from then on, the employer is no longer her employer, and is not liable to pay her wages in the period before her disability grant is approved.
The question is then whether her employment was fairly terminated in terms of the Labour Relations Act 66 of 1995 (LRA). In terms of the LRA, the employer must undertake an incapacity enquiry to assess whether the employee is capable of doing her duties in the position she occupied or if there is a suitable alternative position.
Once the employer has undertaken this enquiry and is satisfied that the employee is unable to perform her duties and that all possibilities have been exhausted, the employer may dismiss her, or, as you say, terminate her contract.
As the doctors said that your mother would need oxygen from now on, it seems clear that she could not perform her previous duties as a security guard. It may also be the case that she would be unable to perform most duties in her condition.
The employer is not obliged to retain an employee who is permanently incapacitated if her working circumstances cannot be adapted. In that case, it may be considered a fair dismissal provided the employer properly investigated the extent of her incapacity and considered all possible alternatives.
Once the employment relationship is terminated, the employer does not have to pay the wages for the six months before the disability grant starts. That would be covered by UIF. The employer will also stop contributions to the pension or retirement fund as the employment relationship no longer exists. Depending on the rules of the fund, your mother will receive her pension or retirement fund at the appropriate time. You could ask the personnel department at your mother’s work to give you a copy of the rules.
You could also ask a paralegal organisation like the Black Sash for further advice at help@blacksash.org.za or telephone the helpline at 072 633 3739 or 063 610 1865.
Wishing you the best,
Athalie
Answered on June 30, 2021, 1:56 p.m.
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