It is significant to note that the underlying objective of the SACP [‘Sick Absence Control Procedures’] appears to be its compliance with the provisions of items 10 and 11 of the Code of Good Practice. In other words, the appellant [General Motors] recognised the risk that non-compliance with those provisions would potentially render termination of an employee’s employment on the ground of incapacity, both procedurally and substantively unfair.
In IMATU obo Strydom v Witzenberg Municipality [2012] 7 BLLR 660 (LAC) this Court (per Molemela AJA, as she then was) stated:
‘[7] I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognised as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would, under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.
[8] The afore-mentioned obligations of the employer as set out in items 10 and 11 of Schedule 8 to the LRA are inter-related with similar obligations in the Employment Equity Act 55 of 1998 . . . Surely non-compliance with such an important constitutional imperative would not only impact on procedural fairness but on the substantive fairness of the dismissal as well?
[9] I am of the view that the provisions of items 10 and 11 are inextricably tied and thus non-compliance therewith would render a dismissal both procedurally and substantively unfair…’
Justice of appeal Ndlovu in General Motors (Pty) Limited v Numsa obo Ruiters (PA 8/12) [2015] ZALCPE 2 (22 January 2015) at para [34].