LEGAL REFERENCES:

1. Occupational Health and Safety Act (OHSA) , No 85 of 1993 and Regulations.
2. The Mines Health and Safety Act(MHSA) , No. 29 of 1996 and Codes of Practice.
3. The Labour Relations Act No 28 of 1956 as amended in 1996. LRA
4. The Employment Equity Act 55 of 1998. EEA.
5. The Codes of Good Labour Practice (including Hours of Work, Pregnancy, HIV and; testing, Disability, etc.) This is found in the Labour Relations Act - Check the "Contents" pane and open up the section labelled "Codes of Good Practice" for a full list.
6. The Basic Conditions of Employment Act 75 of 1997(BCOEA)
7. The National Road Traffic Act No. 93 of 1996, and Regulations.

Various statutes and regulations, guidelines and guidance notes published in terms of these statutes govern fitness to work. The provisions relevant to work fitness and disability are summarised below.

Occupational Health and Safety Act 85 of 1993 (OHSA)

The OHSA provides for the protection of the health and safety of employees and other persons at companies and requires risk assessment, exposure measurement and risk control. The duties of employers in this regard are stated clearly. The ways in which this act refers to fitness to work is largely within it’s regulations, such as the hazardous chemical substances regulations, the hazardous biological agents regulations, the lead regulations, and the noise induced hearing loss regulations. The employer may not allow an employee to continue to work in an area which places the employee’s health at risk, should the employee be regarded unfit to do so by an Occupational Medical Practitioner.

Examples:

Section 8: General duties of employers to their employees
Sections 11 and 12 ("Listed work"). Hazardous Chemical Substances Regulations, sections 5, 6 and 7 (note section 7(3).

Mine Health and Safety Act 29 of 1996 (MHSA)

The MHSA also provides for the protection of the health and safety of employees and other persons at companies and requires risk assessment, exposure measurement and risk control. Part of risk control is medical surveillance, which has two main objectives: to ensure that employees meet the minimum standards of fitness to work, and to identify early signs of occupational disease. It is a specific requirement of each company to establish a Code of Practice for Medical Surveillance. There is a Code of Practice for Exposure Surveillance put out by the DME which states this as a requirement but the contents are not specified in any detail.

Labour Relations Act 66 of 1995 (LRA)

The LRA regulates unfair dismissal and unfair labour practices directed at employees, including disabled employees. In terms of the LRA, dismissal of a person solely on the grounds of disability is automatically unfair, and constitutes an unfair labour practice.

Conversely, the Act provides mechanisms for the fair dismissal of an employee who is incapable of doing his or her job because of poor health or injury. Such a dismissal must be both substantively and procedurally fair.

Substantive fairness relates to the reason for the dismissal, that is, the employee's ill health or injury.

Procedural fairness relates to the manner in which the case is conducted, prior to the decision to dismiss. The detail of these instructions is contained in the document Code of Good Practice Dismissal, to which reference is made in the Act.

Employment Equity Act 55 of 1998 (EEA)

The EEA provides for the eradication of unfair discrimination in the workplace (including discrimination against the disabled).

The EEA makes provision for two defences against an allegation of unfair discrimination, namely:

• that the employer acted in terms of an affirmative action policy; or
• that the inherent requirements of the job are such that the disabled person would not be able to do the job.

Medical testing is also regulated. Medical testing of an employee is prohibited unless:

• legislation permits or requires the testing (such as prescribed by the MHSA); or
• it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the job.

The Basic Conditions of Employment Act 75 of 1997 (BCEA)

The BCEA contains a number of provisions that relate to the issue of fitness for work such as paid sick leave, medical certificates, maternity leave, protection of employees before and after birth of a child and night (shift) work.

The provisions regarding sick leave do not apply to an inability to work caused by an accident or an occupational disease as defined in the COID Act, or in the ODMWA, except in respect of any period during which no compensation is payable in terms of these acts.

Substantive fairness:

Factors that should be considered to ensure substantive justice are the following:

• Is the employee capable of doing the required work and fulfilling his tasks?
• The type, severity and duration of the disability
• Is absence from work temporary or permanent? (Medical information is of major and decisive importance)
• The impact of this on the employer’s operations
• The size of the employer’s business
• The length of the person’s employment
• The cause of the disability (in case of alcohol - or drug abuse, for instance, the employer should consider reasonable aid by way of consultations and rehabilitation)
• Can the post possibly be adapted to accommodate the employee?
• Possibility of alternative suitable posts before dismissal.

Where an employee’s disease or disability is related to his work, the obligations of the employer increase.

Two factors are decisive when establishing what weighting the length of absence should carry when making decisions:

• The need of the employer to replace the employee with a healthy worker (the type of post held and the size and nature of the business concern is of importance in this case), and
• The effect the employee’s absence has on other employees: for example, are they expected to work overtime to do his work?

Procedural fairness:

To ensure a fair and just process in case of disability caused by disease or an accident, it is necessary to establish all the facts. The employer should be part of the process by way of consultation. Discusions should be held with the employee, to ensure that the impact of the absence on the normal operation of the company is fully understood.

The employee must be aware that sick leave may only be used in genuine cases of illness and that it is not to be used as a type of annual leave without really being ill. The employee must also be informed that:

• Regular absence causes operational problems;
• The company and other workers have expectations about the attendance and work performance of a co-worker.