Picket protest by Dis-Chem workers affiliated to NUPSAW union in 2018. Photo by Bafana Nzimande/TimesLIVE:
The CCMA dismissed a claim for unfair dismissal by a former Dis-Chem employee with cancer.
What is the responsibility of a company to employees who become too ill to do their work? A recent CCMA ruling sheds some light on this.
Refilwe Matinketsa worked for Dis-Chem from March 2019 as a picker at its distribution centre. She had to have cancer surgery in 2022. After this she could no longer lift heavy items because she had been fitted with a stoma bag. She was given a temporary job as a checker but was told that this position was redundant and was dismissed in April this year.
The Casual Workers Advice Office (CWAO) assisted her to take an unfair dismissal case to the Commission for Conciliation, Mediation and Arbitration (CCMA) but lost the case last month. The commissioner found that Matinketsa’s dismissal was fair.
Commissioner Johan Stapelberg said Dis-Chem had accommodated her for a lengthy period and there were no alternative positions because the company was shrinking its workforce.
“The prognosis indicated that the inability to do her usual duties would be permanent and the respondent [Dis-Chem] had no alternative but to dismiss the applicant [Matinketsa].”
In her evidence before the CCMA, Matinketsa said on her first day back, when she resumed her duties as a picker, she felt her stomach swelling and was in pain. She was allowed to go home.
A week later, she was called to a meeting in the boardroom and was given work as a checker, which she did until March 2024 when she was told that job was no longer available.
She claimed during the hearing that she was now fully fit for work, but conceded that there was no doctor’s note indicating this.
The HR manager Pule Moeketsi testified at the CCMA hearing that the checker position had become redundant. The company had accommodated Matinketsa in that position hoping her health would improve sufficiently for her to resume her normal duties.
He said eventually, the company had no choice but to start the process of dismissal due to incapacity.
He said her representative had asked if there was space for her as a cashier but this was not possible because the company was restructuring and positions were being reduced.
Dis-Chem says it was reasonable but CWAO disagrees
The CWAO questioned how Dis-Chem could claim it did not have any alternative light-duty or desk job available anywhere for Matinketsa.
“Ms Matinketsa returned to work at Dis-Chem in November 2023. She was expected to continue lifting boxes and repeatedly bend over and stretch - which she could not do because of the stoma bag.”
“Ms Matinketsa offered to work in three other positions – as box maker, scanner or packer but Dis-Chem had also made all of these positions redundant. Dis-Chem did not even make a single attempt to offer Ms Matinketsa retraining in office work or offer her a single job in any of its stores, perhaps dusting the shelves or arranging lipsticks or other tiny items.”
It said that all manual workers could be summarily dismissed if they were diagnosed with cancer, or suffered other injuries, even if they had long service and “corporate giants needed to be exposed and made to change their ways”.
"Simply terminating their injured and disabled workers is discriminatory and unconstitutional.”
The CWAO has called on Dis-Chem to immediately reinstate her. It said the company had 319 stores in South Africa, Namibia and Botswana, hundreds of in-store clinics and assets of more than R10 billion.
“Yet it refuses to find a permanent light-duty job for its female cancer survivor employee, even after years of loyal service from her,” the CWAO said in a statement.
But Brian Epstein, Dis-chem Operations Divisional Director, said CWAO’s statement was not entirely factually correct and said it had incorrectly portrayed Dis-Chem as a heartless organisation “which was not the case”.
“After Ms Mantinketsa reported ill in July 2022 she was admitted to hospital and underwent surgery. Her extended post-surgery recovery was accommodated by granting annual leave once her sick leave was depleted. Thereafter unpaid leave was initiated with no end date,” he said.
“In May 2023 Dis-Chem assisted Ms Mantinketsa with lodging a disability claim to help relieve her financial burden. In the interest of employee welfare, Dis-Chem employees enjoy many benefits such as sponsored medical insurance, in-house clinics manned by qualified nursing practitioners, daily meals, virtual doctor services, and many other welfare services.”
Epstein said when Mantinketsa reported for work in December 2023, “new roles and duties with standard operating procedures, and retraining was initiated”.
The intention, he said, was to reduce the physical effort in her duties. But when she did not cope with the duties given to her, her tasks were further reduced to include even lighter duties.
“Mantiketsa was unfortunately battling to cope with her reduced responsibilities and could not work a full shift and she was still not physically coping with her work duties even when she was moved to a light duty small item picking function. She could not physically manage. For a further four months Dis-Chem continued to try and accommodate Ms. Mantiketsa on full pay even though she was not productive.
“It is very sad that Ms. Mantiketsa has suffered badly from her illness, and we empathise with her. However after a period of nearly two years we had exhausted all options to assist her, and we had to unfortunately let her go. Subsequently the employee referred the matter to the CCMA who ruled all procedures were followed correctly.”
Dis-Chem said employees were covered for temporary and permanent disability and the insurance premiums were paid by Dis-Chem.
“It is also important to state that Dis-Chem covered the three-month waiting period for the temporary disability claim for Ms Mantinketsa and paid out three months of disability salary at our cost, without Ms Mantinketsa having to wait three months before she was paid her temporary disability claim.”
The Labour Relations Act
Schedule 8 of the Labour Relations Act recognises incapacity of an employee as a reason for dismissal. The Act says in cases of permanent incapacity the employer must look into providing alternative work for the employee or adapting the employee’s duties or work circumstances to accommodate the employee’s disability.
The Act stipulates that in the process the employee must be allowed to state a case and to be assisted by a trade union representative or fellow employee.
The degree of incapacity is relevant to the fairness of any dismissal.
According to the LRA, anyone determining whether a dismissal arising from ill health or injury is unfair should consider whether or not the employee is capable of performing the work; and, if the employee is not capable:
- The extent to which the employee is able to perform the work;
- The extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
- The availability of any suitable alternative work.
ESSENTIAL RESOURCE
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