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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1290
Experience:  BCom; LLB; Masters in Law
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I have been booked off six months now. My employer gave me

Customer Question

I have been booked off for about six months now. My employer gave me the following options: 1. To follow the incapacity due to ill-health process in line with the company’s policies and practices
2. The company to inform the pension fund, based on the medical reports and sick leave records that I am permanently incapacitated and unable to perform my duties and therefore dismissed.
I do not understand the difference between the two options and which one is the better one to take
Submitted: 5 months ago.
Category: South Africa Law
Expert:  CaseLaw replied 5 months ago.

Hi there and thank you for your question,

I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

Incapacity refers to the situation where an employee is unable to carry out or perform to his/her contracted obligations due to the inherent inability on the part of the employee. Incapacity is distinguished from misconduct and discipline in that ‘fault’ or; blame’ is not alleged in incapacity.

There is an excellent article here that you should read: http://www.labourguide.co.za/discipline-dismissal/341-fairness-of-dismissal-for-incapacity-ill-health and also http://www.ee.co.za/article/incapacity-ill-health-or-injury-a-reason-for-dismissal.html

If you follow the second route, you would effectively be dismissed as at the date that the decision is taken. You would also agree to be dismissed. There would be no coming back from that decision, and it would be binding on you.

If you follow the first route, then you would follow the company’s policies which includes an investigation into whether you are incapacitated, and also whether there is a different job which you could do at the work. That would be a better route to take - more in line with the law.

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

Expert:  CaseLaw replied 5 months ago.

Hi there again,

I see that you've read my answer and I hope that you understood the answer and that it was useful? If you have a further question please ask it, or if you need clarity on the answer please let me know.

If you're happy that I've answered your question, please leave positive feedback for me.

Regards

CaseLaw