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Incapacity due to ill health: what employers need to know

How to handle long-term illness fairly and lawfully under South African labour law.

⚖️ What is “incapacity due to ill health”?

Incapacity refers to when an employee is unable to do their job because of ongoing or serious health issues.

This could include:

  • Long-term illness

  • Serious injury

  • Mental health challenges

  • A chronic condition that causes frequent absences or reduced ability to work

🛑 This is not the same as ordinary sick leave. It relates to whether the person can still perform their role at all.

🧾 What the law requires

Under the Labour Relations Act, an employer may dismiss an employee for ill health only if:

  1. The incapacity is serious or ongoing

  2. A fair process has been followed

  3. Reasonable alternatives were considered

  4. The employee is paid for their notice period, even if they cannot work during it

❗ You cannot dismiss someone simply because they’ve been sick “too many times” — you must prove the incapacity is long-term and that you acted fairly.

💬 Alternatives to dismissal

Before considering dismissal, the law expects you to explore options such as:

  • Offering a period of extended (unpaid) sick leave

  • Adjusting the days or tasks of the job

  • Waiting for the employee to recover

  • Agreeing on a phased return to work

📌 If a temporary break would allow the employee to return to work, dismissal may not be justified.

You can say:

“Let’s give you some time to recover. If your health improves, we can restart your work when you're ready.”

🧭 What a fair incapacity process looks like

Here’s how to handle it step by step:

✅ Step 1: Assess the situation

  • Ask the employee to explain their condition

  • Request a doctor’s report (if needed)

  • Understand whether recovery is likely

✅ Step 2: Consider alternatives

  • Can they do lighter tasks?

  • Can they work fewer days?

  • Can you offer them unpaid sick leave with a return date?

✅ Step 3: Hold a consultation

This is like a meeting or conversation where you:

  • Explain your concern about their ability to work

  • Ask them to respond or share documents

  • Discuss any possible solutions

🗣️ This should be done with kindness, but also recorded in writing (AskMandla can help with this).

✅ Step 4: Make your decision

If there's no alternative and the illness is ongoing:

  • You may proceed with a dismissal for incapacity

  • You must:

    • Give proper written notice

    • Pay the full notice period, even if they are not working

    • Prepare UIF forms so they can apply for illness or unemployment benefits

💬 Example message to your employee

“Because of your ongoing health condition and the impact on your ability to work, we’ve gone through the process of assessing options. Unfortunately, we’re unable to continue the job, and we will end the contract with notice pay. You can apply for UIF, and we’ll provide the paperwork.”

🧾 How AskMandla helps

AskMandla can support you through the whole process:

  • Guidance via WhatsApp

  • Medical certificate storage

  • Templates for notice or incapacity consultation

  • UIF documentation

  • Logging the final payment on the payslip

Just message us: “Health incapacity support”

🧠 Tips for handling this well

  • Be compassionate but clear

  • Keep all messages and documents

  • Don't rush the process, give time for fair consideration

  • Offer sick leave before deciding on termination

  • Use AskMandla to stay legally compliant