CHANGING WORLD FOR HIGHER EDUCATION INSTITUTIONS

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CHAPTER 3: CONVENTIONS AND REGULATORY FRAMEWORK ON INCAPACITY MANAGEMENT

Generally, labour legislations are constructively fortified with the goal of revitalising the socio-economic fabric of the country through their malleable yet firm provisions, which hypothetically works its way through harmonising the relationship between employer and employee.
Henrietta Newton Martin

 INTRODUCTION

This chapter provides an overview of the conventions and regulatory framework applicable to incapacity management in the workplace. In addition, the employer’s obligations, prior to the termination of the employment contract due to incapacity, are also addressed.
The aim of chapter 3, as diagrammatically depicted in Figure 3.1, is to provide a comprehensive literature review on the conventions and regulatory framework applicable to the management of incapacity due to ill health in the workplace. The chapter provides an overview of the essence of an employment relationship including the common law obligations of both the employer and employees. As the transformed South African higher education sector model is largely drawn from developed countries such as the United States of America, the United Kingdom, the Netherlands, and Australia, their applicable legislation and selective case law were investigated. The South African legislation was also compared with international conventions. In addition, the practical application of the legislation by the South African employers, as contained in South African case law, was investigated. The current incapacity management policies and procedures in the ODL institution were compared to the national legislative requirements and the applicable judgements or awards by the South African dispute-resolution forums, to determine its compliance. Any shortcomings of the current policies and procedures for incapacity management were explored.

 CONCEPTUALISING THE EMPLOYMENT RELATIONSHIP

It must be appreciated that the employment relationship is influenced by international and local factors and should be understood within this context. The employment relationship is a sub-system of an organisation, which in turn is a sub-system of a wider environment (Slabbert et al., 2006, p. 1-37). In addition, an employment relationship provides for various role players that also have an impact on the relationship. As a key role player, the employee is dependent on the employment relationship for economic, social, and psychological needs (Davidov & Eshet, 2015, p. 173). Figure 3.2 provides a schematic representation of the employment relationship.
Figure 3.2: Context of the employment relationship (own compilation)
The employment relationship is generally regulated through employment legislation, collective agreements, and an employment contract. An employment contract may not have less favourable conditions than what is provided for in the legislation or an applicable collective agreement. Where no employment legislation exists, the employment relationship is governed by the employment contract, enforceable in terms of common law (Bendix, 1996, p. 107; Grogan, 2009, p. 2). Common law refers to the rules and principles from the Roman, Roman-Dutch, and English law that South Africa inherited during the colonial era. These common law rules and principles have been further developed by the South African courts since South Africa became a fully sovereign state to bring the rules and principles in line with the new constitutional dispensation (Grogan, 2009, p. 2). Furthermore, common law does not cater for the conditions of modern commerce and industry, more specifically, for the fundamental human rights principles and their entrenchment in countries’ constitutions (Grogan, 2009, p. 3). Common law does not provide sufficient protection of employees in the employment relationship. Its rules and principles do not adjudicate on the concept of fairness or equity, which is crucial in the employment relationship (Bendix, 1996, p. 107). In the South African context, the Labour Relations Act 66 of 1995 (Republic of South Africa, 1995) defines, in addition to unfair dismissal, the following four main categories of unfair practices in the employment relationship:
 the employer conducting unfair practices in terms of promotion, demotion, probation, training of an employee or providing of benefits to employees
 the unfair suspension of an employee or any other unfair disciplinary sanction short of dismissal imposed on an employee
 an employer refusing to reinstate or re-employ an ex-employee in terms of any agreement
 the employer disadvantaging an employee as a result of whistle blowing (Republic of South Africa, 1995, s 186(2), 187, 188)
The essence of the employment contract is that the employee voluntary places his or her labour potential or personal services at the disposal of and under the control of the employer, in return for remuneration for a continuous period (Bendix, 1996, pp. 115-116; Davidov & Eshet, 2015, p. 173; Grogan, 2009, p. 29; Grogan, 2014, p. 17; Slabbert et al., 2006, p. 5-71; Van Zyl, 2011, p. 8). The contract should preferably be in writing, but even if it is not, the verbal understanding between the employer and employee is still binding (Grogan, 2014, p. 17). In contrast to this view of Grogan (2014, p. 17), section 29 of the Basic Conditions of Employment Act 75 of 1997 (Republic of South Africa, 1997) stipulates that an employer must furnish an employee with written particulars of the employment. However, the non-reducing of an employment contract in writing does not render it void, meaning that the verbal understanding between the employer and employee will be accepted as a valid contract (Grogan, 2009, p. 30). Cohen (2012, p. 84) points out that while the employment contract is invariably concretised through a written contract of employment, the rights and obligations of the parties evolve over time and extend well beyond the confines of the written agreement. This evolvement is as a result of commitments that the employer makes to employees, over the course of the relationship, the development of workplace practices and the development of expectations that may give rise to a sense of entitlement.
The reciprocal nature of the employment contract implies that an employer can expect reasonable efficient, diligent and faithful performance from an employee. In addition, the employee shall not deal dishonesty with the property of the employer, and not compete with the business of the employer. In return, the expectation exists that the employer shall compensate the employee fairly and provide a safe and healthy working environment (Bendix, 1996, p. 116; Grogan, 2009, pp. 47-57; Slabbert et al., 2006, pp. 5-99–5-101). The implied obligation is that the parties will conduct themselves in a manner that is not likely to damage or destroy the employment relationship. This is known as the obligation of mutual trust and confidence or fair dealing (Cohen, 2012, p. 94).
Should an employee not be able to fulfil his or her contractual obligations it can be viewed as a breach of the employment contract (Van Zyl, 2011, p. 8). Consequently, the employer has a duty to determine the reasons for the non-performance according to the contract and allow the employee an opportunity to remedy the situation. If an employee then fails to fulfil his or her obligations of the employment contract, the employer may elect to terminate the employment contract (dismiss the employee) on the terms provided for in the contract (Grogan, 2014, p. 2; Slabbert et al., 2006, p. 5-72). In terms of common law the termination of an employment relationship must be lawful, which means that the termination of the contract must be in terms of the termination conditions as stipulated in the employment contract (Grogan, 2014, p. 2). This argument supports Bendix’s view (1996, p. 107) that common law does not support fairness and equity, but purely compliance with the contractual duties.
In terms of the South African employment legislation the termination of an employment contract should be for a fair reason and in accordance with a fair procedure (Bendix, 1996, p. 116; Grogan; 2014, p. 11; Republic of South Africa, 1995, s 187,188; Van Zyl 2011, p. 15). Grogan (2014, pp. 2-4) points out that, particularly with the enactment of the Labour Relations Act 28 of 1956 and its successor, the Labour Relations Act 66 of 1995, the termination of the employment relationship is no longer merely adjudicated on the contractual entitlement (common law) in terms of lawfulness, but also on whether the employer acted fairly in doing so. Fair dismissal depends on two requirements. Firstly, the employer must present a fair reason to terminate the employment contract. A fair reason in the South African context is misconduct, incapacity (due to ill health or poor performance) or operational requirement (retrenchment). Secondly, the employer must follow a fair procedure prior to terminating the employment contract. The procedure followed would be judged differently according to each of the aforementioned reasons for dismissal (Grogan, 2009, pp. 165-167; Republic of South Africa, 1995, s 188). It is important that an employer should be able to deal with the termination of a contract with confidence, as a botched termination can be costly, both in time and money, and may impact negatively on the employment relationship and productivity of the organisation (Grogan, 2014, p. 1). Over and above the time spent during appearances at the relevant dispute resolution structures, such as the Commission for Conciliation, Mediation and Arbitration (CCMA) or a Bargaining Council, the Labour Relations Act 66 of 1995 (Republic of South Africa, 1995) provides that the remedy for an unfair termination of a contract can be an order for reinstatement, re-employment, or compensation to be paid to the employee (Republic of South Africa, 1995, s 193(1)). Current legislation states that compensation may not be more than 12 months remuneration calculated at the employee’s date of dismissal or 24 months’ remuneration for an automatic unfair dismissal (Republic of South Africa, 1995, s 194(1)).

 INTERNATIONAL PERSPECTIVE

As the employment relationship exists in a global world and is influenced by international trends (Figure 3.2), it is imperative to explore the international legislative regime. Bendix (1996, p. 108) points out that in drafting employment legislation, governments need to be guided by globally accepted employment standards that are supplied by the various conventions and recommendations of the International Labour Organisation (ILO). These ILO conventions are explored later in this chapter.
As the transformed higher education model of South Africa is largely drawn from developed countries such as the United Kingdom (UK), the Netherlands, Australia and the United States of America (USA), a summary is provided on these countries’ employment legislation pertaining to the management of incapacity in the workplace and the termination of an employment contract (Setati, 2014, p. 1). In addition, the Netherlands and Great Britain played an important role in the history and legislation of South Africa due to their colonisation of certain parts of South Africa (Grogan, 2009, p. 2). To a large extent the principles of the Roman-Dutch, and specifically the English laws still form part of the current South African legal system.

 International Labour Organisation

The International Labour Organisation (ILO) was founded on 28 June 1919 after the end of the First World War as part of the Peace Treaty of Versailles (Bendix, 1996, p. 108; Burger, 2013, p. 55; Smit, 2010, p. 41). The ILO attempts to assist in establishing protective values for profit and social peace through equal working conditions. In terms of a dismissal of an employee, the Termination of Employment Convention, 1982 (International Labour Organisation, 1982) sets the preferred standards for member states.
As the study focuses on incapacity and the potential termination of an employment contract due to ill health, the discussion is limited to only the relevant articles of the Convention as briefly outlined below.
Article 1 determines that the provisions of the Convention shall be given effect by laws or regulations if it is not contained in collective agreements, arbitration awards, or court decisions (International Labour Organisation, 1982, s 1). Member countries of the ILO are expected to subscribe and adhere to the international employment standards set by the ILO.
Article 4 of the Convention (International Labour Organisation, 1982, s 4) stipulates that the employment of a worker shall not be terminated unless there is a valid reason. The valid reason for termination is similar to the fair reason prescribed to by South Africa as mentioned in the previous section, namely incapacity, misconduct, or the employer’s operational requirements. Incapacity relates to the inability of the employee to perform the job. Misconduct refers to an employee’s action or behaviour that is not acceptable within the employment relation, such as dishonesty, fraud, and gross insubordination. Termination due to operational requirements is based on the economic needs of an organisation and is not an employee’s fault.

CHAPTER 1: RESEARCH ORIENTATION
1.1 INTRODUCTION
1.2 CHANGING WORLD FOR HIGHER EDUCATION INSTITUTIONS
1.3 PROBLEM STATEMENT
1.4 RESEARCH PURPOSE
1.5 RESEARCH QUESTIONS
1.6 RESEARCH PARADIGM
1.7 RESEARCH DESIGN AND METHODOLOGY
1.8 POTENTIAL VALUE ADDED BY THIS STUDY
1.9 DELIMITATIONS AND ASSUMPTIONS
1.10 ETHICAL CONSIDERATIONS
1.11 CHAPTER DIVISION
1.12 SUMMARY OF CHAPTER
CHAPTER 2: ORGANISATIONAL JUSTICE AND INCAPACITY MANAGEMENT IN THE WORKPLACE
2.1 INTRODUCTION
2.2 ORGANISATIONAL JUSTICE IN THE WORKPLACE
2.3 INCAPACITY MANAGEMENT
2.4 IMPACT OF INCAPACITATED EMPLOYEES IN THE WORKPLACE
2.5 INCAPACITY MANAGEMENT PRACTICES
2.6 INCAPACITY MANAGEMENT INSTRUMENTS IN THE ODL INSTITUTION
2.7 SHORTCOMINGS IN THE INCAPACITY MANAGEMENT INSTRUMENTS OF THE ODL INSTITUTION
2.8 PERSONAL REFLECTIONS ON THE CHAPTER
2.9 SUMMARY OF THE CHAPTER
CHAPTER 3: CONVENTIONS AND REGULATORY FRAMEWORK ON INCAPACITY MANAGEMENT
3.1 INTRODUCTION
3.2 CONCEPTUALISING THE EMPLOYMENT RELATIONSHIP
3.3 INTERNATIONAL PERSPECTIVE
3.4 SOUTH AFRICAN PERSPECTIVE
3.5 ODL INSTITUTION’S PERSPECTIVE
3.6 PERSONAL REFLECTIONS ON THE CHAPTER
3.7 SUMMARY OF CHAPTER
CHAPTER 4: REASONABLE ACCOMMODATION
4.1 INTRODUCTION
4.2 PERSPECTIVES FROM GLOBAL MULTILATERAL INSTITUTIONS
4.3 PERSPECTIVES FROM INTERNATIONAL COUNTRIES
4.4 SOUTH AFRICAN PERSPECTIVE
4.5 SOUTH AFRICAN HIGHER EDUCATION PERSPECTIVE
4.6 ODL INSTITUTION’S PERSPECTIVE
4.7 INTEGRATION OF THE LITERATURE
4.8 PERSONAL REFLECTIONS ON THE CHAPTER
4.9 SUMMARY OF THE CHAPTER
CHAPTER 5: RESEARCH DESIGN AND METHODOLOGY
5.1 INTRODUCTION
5.2 PHILOSOPHICAL RESEARCH ASSUMPTION
5.3 QUALITATIVE RESEARCH APPROACH
5.4 RESEARCH DESIGN
5.5 DATA SOURCES
5.6 DATA COLLECTION
5.7 DATA MANAGEMENT AND RECORDING
5.8 DATA ANALYSIS
5.9 STRATEGIES FOR ENSURING TRUSTWORTHINESS
5.10 ETHICAL CONSIDERATIONS
5.11 SUMMARY OF CHAPTER
CHAPTER 6: RESEARCH FINDINGS
6.1 INTRODUCTION
6.2 DATA FROM INTERVIEWS
6.3 DATA FROM DOCUMENTS
6.4 INTEGRATION OF FINDINGS
6.5 SUMMARY OF RESEARCH FINDINGS
6.6 SUMMARY OF CHAPTER
CHAPTER 7: INCAPACITY MANAGEMENT FRAMEWORK FOR THE ODL INSTITUTION
7.1 INTRODUCTION
7.2 PURPOSE OF THE INCAPACITY MANAGEMENT FRAMEWORK .. 265
7.3 DESIGNING AN INCAPACITY MANAGEMENT FRAMEWORK FOR THE ODL INSTITUTION
7.4 MEANING OF AND INTERACTION BETWEEN THE ELEMENTS OF THE FRAMEWORK
7.5 SUMMARY OF CHAPTER
CHAPTER 8: RESEARCH CONCLUSIONS, LIMITATIONS AND RECOMMENDATIONS
8.1 INTRODUCTION
8.2 CONCLUSIONS
8.3 Limitations
8.4 Research contribution
8.5 RECOMMENDATIONS
8.6 REFLECTIONS
8.7 FINAL CONCLUSION
REFERENCES
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