ILL-HEALTH INCAPACITY & THE ROLE OF MEDICAL BOARDING
2026
Synopsis
Schedule 8 of the Code of Good Practice: Dismissal, specifically Items 10 and 11, provides employers with guidance on managing incapacity arising from ill-health or injury. A recent judgment by the Labour Court in Solidarity v Cape Peninsula University of Technology and Others (C196/24)
[2026] ZALCCT 107 reinforces the importance of conducting a fair incapacity process, meaningfully exploring alternatives to dismissal, and ensuring that the true reason for termination is properly identified.
The judgment serves as a timely reminder that employers must not only follow the correct procedure but must also demonstrate genuine efforts to accommodate employees and investigate all reasonable alternatives before dismissal becomes an option.
The facts
The employee had been employed from May 1996 until July 2023, when her employment was terminated following an ill-health incapacity hearing conducted in her absence while she was on sick leave. She subsequently referred an unfair dismissal dispute to the CCMA.
The matter eventually came before the Labour Court, which found that the dismissal was substantively unfair and awarded the employee eleven months’ compensation. Central to the Court’s finding was the employer’s failure to adequately consider and meaningfully explore reasonable alternatives to dismissal.
WHAT THE CODE OF GOOD PRACTICE REQUIRES
Items 10 and 11 of Schedule 8 distinguish between temporary and permanent incapacity and place a positive obligation on employers to investigate the extent of an employee’s condition.
Where an employee is likely to be absent for an unreasonably long period, employers are required to consider alternatives to dismissal, including:
- Temporary replacement arrangements;
- Adaptation of duties;
- Adjustments to working conditions;
- Alternative positions within the organisation; and
- Any other reasonable accommodation measures available in the circumstances.In cases involving permanent incapacity, employers must actively assess whether alternative employment or suitable workplace adaptations can enable the employee to continue working.
PROCEDURE AND SUBSTANCE: BOTH MATTER
One of the most significant lessons from the judgment is that procedural and substantive fairness are closely intertwined in incapacity matters.
The Court expressed concern that the notice issued to the employee contained terminology such as “charges”, “guilt”, and “sanction”, language ordinarily associated with misconduct proceedings rather than an incapacity inquiry. This raised questions regarding the employer’s understanding of the nature of the process and whether the employee was afforded a fair opportunity to address the real issues under consideration.
The Court further noted that evidence relating to performance shortcomings had become intertwined with allegations of ill-health incapacity. Employers should remember that:
- Misconduct concerns blameworthy conduct by the employee.
- Poor performance concerns an employee’s ability to meet required standards.
- Ill-health incapacity is a no-fault process where the employee’s medical condition affects their ability to perform their duties.
Confusing these concepts can undermine the fairness of the process and expose employers to legal challenge.
MEDICAL BOARDING: AN "OBVIOUS" ALTERNATIVE
A key aspect of the judgment was the employer’s failure to properly consider medical boarding and disability benefits as an alternative to dismissal.
Although the employer had previously attempted various accommodation measures, the Court found that these efforts did not satisfy its obligation to meaningfully explore alternatives at the time the incapacity process was conducted. Of particular importance was the fact that the employer had disability insurance available to employees but failed to assist the employee in pursuing the benefit and failed to await the outcome of any application.
The Court reaffirmed principles established in previous case law, emphasising that where medical boarding is a realistic possibility, it constitutes an obvious and reasonable alternative that must be properly investigated before terminating employment.
Importantly, the Court indicated that even where an employee may initially show limited interest in pursuing medical boarding or disability benefits, an employer’s obligation to investigate the option does not disappear if the employee later requests assistance. Once the issue is raised, it must be considered seriously and in good faith.
The Court further endorsed the principle that where an employee seeks additional time to pursue medical boarding or obtain supporting medical evidence, employers should exercise caution before proceeding with a dismissal. A failure to adequately investigate this alternative may render the dismissal unfair.
THE IMPACT ON YOUR BUSINESS
Takeaway for employers
This judgment provides several practical lessons for employers:
1. Use the Correct Process
Ensure that incapacity inquiries are clearly distinguished from misconduct and performance management processes. The language used in notices, correspondence, and hearings should accurately reflect the nature of the inquiry.
2. Meaningfully Explore Alternatives
Employers must do more than simply identify alternatives. They must be able to demonstrate that those alternatives were genuinely investigated and considered before a dismissal decision was made.
3. Consider Medical Boarding Where Available
Where disability benefits or medical boarding options exist, employers should actively assist employees in accessing these mechanisms and should not proceed to dismissal until the option has been properly evaluated.
4. Document Every Accommodation Effort
Maintain detailed records of consultations, medical assessments, accommodation measures, alternative positions considered, and reasons why alternatives were not feasible. Comprehensive documentation is often critical when defending incapacity dismissals.
5. Remember That Incapacity Is a No-Fault Process
The purpose of an incapacity inquiry is not to determine blame but to establish whether the employee can continue working and whether reasonable accommodation is possible. Employers should approach these matters with fairness, empathy, and objectivity.
REFERENCES
Solidarity v Cape Peninsula University of Technology and Others (C196/24) [2026] ZALCCT 107 (8 July
2026)
Disclaimer: This newsletter is provided for general information purposes only and does not constitute legal
advice. Employers should seek professional advice based on the specific facts and circumstances of each
matter.