Dismissal Following Prolonged Illness

When Incapacity Justifies Termination

Dismissal on the grounds of ill health remains one of the most complex areas of labour law. Employers are required to balance compassion with operational realities, while employees are entitled to fair process and substantive justification. A 2023 Labour Court judgment provides important guidance on how prolonged illness, unsupported by clear medical evidence, may justify termination.

Case Reference

Epibiz (Pty) Ltd v CCMA and Others
[2023] 11 BLLR 1188 (LC)

Background to the Dispute

The employee, Mrs Jordaan, had been employed by Epibiz (Pty) Ltd for approximately 27 years in the role of credit manager. In 2016, she was suspended on full pay and subjected to a disciplinary enquiry on multiple misconduct charges. She was ultimately acquitted of all allegations.

Following her acquittal, the employer formally instructed her to return to work. Instead of resuming her duties, the employee submitted a series of medical certificates declaring her unfit for work. Notably, none of the certificates disclosed the nature or cause of her illness.

Over a period of several months, the employee remained absent from work on the strength of successive medical certificates and reports obtained from a clinical social worker. These reports suggested that she had been traumatised by the suspension and disciplinary process and would struggle to return to the workplace without extensive therapeutic intervention.

Employer’s Response

After approximately three months of continued absence, the employer sought clarity. It invited representations as to why the employment relationship should not be terminated on the basis of incapacity due to ill health or retirement.

The employer ultimately terminated the employee’s employment, citing her continued medical unfitness and the operational reality that her role could not be performed remotely. During the period of absence, the employee had also requested assistance with claims under COIDA and the Workmen’s Compensation Fund, which the employer refused on the basis that such claims would be dishonest or unsupported.

CCMA Outcome

At arbitration, the CCMA found in favour of the employee. The arbitrator held that the employer had failed to properly apply the Code of Good Practice: Dismissal relating to incapacity and that it should have acted with greater sensitivity and caution given the medical documentation submitted. The dismissal was found to be procedurally and substantively unfair, and compensation was awarded.

Labour Court Review

The employer took the arbitration award on review to the Labour Court. The Court overturned the CCMA’s decision, finding that the arbitrator had failed to properly consider material evidence.

Key findings of the Labour Court included:

The medical certificates did not disclose the nature of the employee’s illness, rendering it impossible for the employer to assess prognosis or accommodation options.
Neither the treating doctor nor the social worker testified or provided affidavits, meaning the medical documentation constituted hearsay evidence.
The employee herself was unable to explain the condition for which she had been booked off work.
Under cross-examination, the employee conceded that her duties as credit manager required constant interaction with colleagues and clients and could not be performed from home.

The Court emphasised that medical certificates, without supporting testimony or affidavits, carry limited evidentiary weight. It is established law that such certificates remain hearsay unless properly substantiated.

Findings on Procedure and Fairness

Contrary to the arbitrator’s findings, the Labour Court held that the employer had made reasonable efforts to engage with the employee and to establish the nature of her incapacity. Those efforts were frustrated by the employee’s failure or unwillingness to provide meaningful medical information.

Given the prolonged absence, the lack of clarity regarding the illness, and the nature of the role, the Court found that the employer had no reasonable alternative but to terminate the employment relationship.

The dismissal was therefore found to be both procedurally and substantively fair.

Key Takeaways for Employers

This judgment reinforces several important principles:

Employers are entitled to sufficient medical information to assess incapacity and accommodation.
Medical certificates without detail or supporting testimony may carry little evidentiary value.
Prolonged absence, coupled with an inability to perform essential job functions, may justify dismissal.
Employers are not required to tolerate indefinite incapacity where operational requirements cannot be met.
Arbitrators must consider all material evidence; failure to do so renders awards reviewable.

The Court also cautioned against the misuse of medical certificates and highlighted the need for proper regulation to prevent abuse, including the facilitation of malingering.

This judgment serves as an important reminder that while employers must approach ill-health incapacity with empathy and care, fairness operates in both directions. Employees are entitled to protection against unfair dismissal — but employers are equally entitled to sufficient, credible medical information to assess incapacity, accommodation options, and operational feasibility.

Where prolonged absence is supported by vague or unsubstantiated medical documentation, and where essential job functions cannot be performed, employers may be justified in terminating the employment relationship. The key lies in meaningful engagement, a fair process, and evidence-based decision-making.

How HR Consult Can Support Your Business

Managing incapacity due to prolonged illness is legally sensitive and often emotionally charged. HR Consult assists employers with:

Incapacity investigations and fair process management
Assessing medical evidence and accommodation options
Drafting and implementing defensible incapacity procedures
Labour law advisory support and dispute risk mitigation

👉 Unsure whether your current incapacity process is legally sound?

Contact HR Consult for expert guidance to ensure your decisions are fair, compliant, and capable of withstanding CCMA or Labour Court scrutiny.

Office: 012 997 0037

E-mail: info@hrconsultsa.co.za

Adapted by HR Consult, specialists in South African labour and employment law compliance.

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