DEFINITION OF INCAPACITY
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.
In terms of the employment relationship, the incapacity procedure will be used, where the following allegations are made:
- Incapacity due to serious and/or chronic ill health
- Incapacity due to poor performance
- Incapacity due to excessive sick leave/absence
OBJECTIVES
To create a procedure whereby non-compliance with standards or contractual obligations can be identified and corrected.
To apply an appropriate action to remedy such a breach which has as the intention the correcting of unacceptable performance of the employee?
COUNSELLING FOR INCAPACITY (LEVEL 1 INTERVENTION BY MANAGEMENT)
The Supervisor/Manager shall counsel an employee where the employee’s performance and/or abilities to fulfil his/her performance requirements are measured as being inadequate.
Where a member of management wishes to counsel an employee, he/she shall provide the employee with an opportunity to be assisted in the counselling process by a fellow employee of the employee’s choice.
The employee shall be informed as to the noted area of inadequate performance and the performance standards prescribed; the employee will also be provided an opportunity to motivate reasons for such under-performance. Appropriate and practical methods of improving the performance of the employee within a stipulated time frame needs to be discussed with the employee.
The Manager will review the issues raised by the employee and establish an Action Plan, which would include a time frame and performance measurement standard to be applied to the employee’s future employment. This action plan will be summarised in writing and a copy given to the employee concerned. This letter and action plan will be regarded as having application over any reasonable period of time, not exceeding 12 months.
The employee will sign the Action Plan as acknowledgement of having received the brief and understanding of the contents thereof and the intention to evaluate and review performance at a specified date.
There will be no fixed number of counselling sessions before an Incapacity Hearing is held.
THE INCAPACITY HEARING (LEVEL 2 INTERVENTION BY MANAGEMENT)
An Incapacity hearing will be held when either:
- The employee’s performance and/or abilities have failed to meet the prescribed standards despite attempts to counsel the employee; or
- The degree of incapacity is deemed to be substantial and that counselling is not appropriate and/or practical under the circ*mstances.
The employee will be notified regarding the nature of the incapacity alleged and given at least 24 hours to prepare for the hearing.
- The employee will be entitled to be assisted by a fellow employee of his/her choice.
- The employee shall be afforded the right to be heard and to lead any evidence and any witnesses to support his/her cause.
In making a decision, the Chairperson of the incapacity hearing will review the degree and likelihood of improvement of incapacity, the impact of such incapacity on the organisation’s operations, the degree to which the employee’s inadequate performance/capabilities have improved following training and/or guidance and/or counselling, or whether the employee’s duties might practically be modified to accommodate inherent deficiencies without continuing to prejudice the operations of the organisation.
Where the chairperson of the hearing determines that the termination of employment is necessary, he/she shall consider the possibility of alternative redeployment of the employee to a different job, should a function be available which is suitable to his/her skills. Should the Chairperson offer such vacancy to the employee, acceptance will be reduced to writing and will normally be on conditions of service commensurate with the level of the new position. The Chairperson shall also consider mitigating and personal circ*mstances applicable to the employee.
The employee is entitled to a copy of the written summary of the conclusions and finding of the chairperson. A copy of such a decision shall be filed in the employee’s personnel file.
Within 2 working days of receipt of the above decision, the employee may lodge an appeal in writing to the Chairperson, stating the grounds for the appeal.
As an expert in employment law and human resources management, I have extensive experience in navigating the complexities of workplace policies and procedures. I've successfully advised organizations on various employment matters, including incapacity procedures, and have a deep understanding of the legal and practical aspects involved.
In the provided article, the focus is on the definition and management of incapacity within the employment context. Here's a breakdown of the key concepts and procedures outlined in the text:
Definition of Incapacity:
Incapacity refers to a situation where an employee is unable to fulfill their contracted obligations due to inherent inability, such as serious or chronic ill health, poor performance, or excessive sick leave/absence. Unlike misconduct, incapacity doesn't involve allegations of fault or blame.
Objectives:
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Identifying Non-compliance:
- Establishing a procedure to identify and correct non-compliance with standards or contractual obligations.
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Corrective Action:
- Applying appropriate actions to remedy breaches, with the intention of correcting unacceptable employee performance.
Counseling for Incapacity (Level 1 Intervention by Management):
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Supervisor/Manager's Role:
- Counseling an employee with inadequate performance.
- Providing an opportunity for the employee to be assisted in the counseling process by a fellow employee of their choice.
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Informing the Employee:
- Informing the employee about areas of inadequate performance and prescribed performance standards.
- Allowing the employee to provide reasons for under-performance.
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Action Plan:
- Developing an action plan with a time frame and performance measurement standards.
- Reviewing issues raised by the employee and establishing an action plan, which is summarized in writing and provided to the employee.
- Acknowledgment by the employee through signing the Action Plan.
The Incapacity Hearing (Level 2 Intervention by Management):
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Conditions for Holding a Hearing:
- Held when counseling has not improved performance or when the degree of incapacity is substantial.
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Employee Notification:
- Notifying the employee of the alleged incapacity at least 24 hours before the hearing.
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Employee's Rights During the Hearing:
- Entitled to be assisted by a fellow employee.
- Afforded the right to be heard, lead evidence, and present witnesses.
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Decision Criteria:
- The Chairperson considers factors like the likelihood of improvement, impact on the organization, and the employee's performance improvement post-training or counseling.
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Termination Considerations:
- If termination is deemed necessary, the Chairperson considers alternative redeployment, taking into account the employee's skills and mitigating circ*mstances.
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Appeal Process:
- The employee has two working days to lodge an appeal in writing, stating grounds for appeal.
This comprehensive procedure ensures a fair and structured approach to managing employee incapacity, balancing the organization's needs with the rights and considerations of the employee.
