INCAPACITY
In a recent case, the court considered the confusion which has arisen at the CCMA when interpreting dismissals for incapacity. Having regard to the code of good practice, the commissioner interpreted the code to include only dismissal grounds of ill health or injury. The court found that this was a narrow interpretation and incorrect. In the instance where an employee could not continue in the position in which he or she had been employed that would constitute incapacity as well. In this particular matter, the employer was a financial institution and the employee was unable to obtain the necessary qualifications to perform the duties assigned
to him. As the employee did not have the necessary qualifications, he was dismissed for incapacity. The court found that this fell within the ambit of the code of good practice and considered this to be a fair dismissal.

MEDICAL TESTING
The court ruled that even when an employee has consented to medical testing, the testing itself should still comply with the requirements of the Employment Equity Act, more particularly, the purpose of the testing must not be excluded by the prohibitions listed in that act which are the following: consideration of medical facts, employment conditions, social policy, fair distribution of employee benefits or/and the inherent requirements of the job. In this case, the employee refused the medical testing and was dismissed on the basis that he had consented to same in the contract of employment and the subsequent refusal constituted a failure to carry out a lawful instruction. The court found the dismissal to be unfair as the employer could not show that the need for medical testing met the requirements of the Employment Equity Act regardless of the employee’s consent granted in the contract of employment.

MISREPRESENTATION
The Labour Court found that the dismissal of an employee even four years after employment on the basis that he had misrepresented his qualifications in the interview process was substantively fair. The court confirmed that honesty and integrity were of vital importance in an employment relationship and that dismissal was warranted regardless of when the misrepresentation was actually made.