Medically unfit?

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Conrad
Posts: 1
Joined: 04 Apr 2013, 21:19

Medically unfit?

Unread post by Conrad » 04 Apr 2013, 21:48

Hello, I'm working as an underground fitter on a coal mine. About a year a go I needed a back operation(fusion). After my 6month recovery period I returned to full duty with clearance from the mine doctor. But due of the type of operation I am not able to do everything as I did before,(heavy lifting and working where the roof is to low). I had my yearly checkup 2 weeks ago and my back is all ready degrading so that I will need another back operation if I keep working as I am. I recently refused to work where the roof is low because if I do my back will go into a spasm and I'll need to take a few days sick leave. My foreman sent me home "because I don't want to work" even while he knows I can't work under those conditions. Now management has decided that it would be better to declare me medically unfit (medically boarded as we know it). What is my rights and what can I expect to happen in the future.

Rudy Maritz
Posts: 12
Joined: 08 Dec 2012, 19:01

Re: Medically unfit?

Unread post by Rudy Maritz » 11 Apr 2013, 14:52

Hi Conrad

Interesting question. Not so easy to answer though.
Firstly, allow me to assume that your back problem is "not" work induced. As a result of a medical condition, you are no longer capable to perform the duties you and your employer agreed on when you started working there.
This is in fact a case of incapacity due to ill health, BUT, there are certain criteria that your company has to meet before they can proceed.
Step 1, will be to assess your capability to perform any other function as a "normal" able-bodied person. It seems your incapacity is limited to working in a bent position or lifting heavy loads without help. This in itself does not warrant incapacity, unless that is ALL your job entails.
Step 2 is to offer you an "alternative" without reduction in remuneration and benefits. If none exists, then a "new" offer need to be presented, even at a lower rate of pay. This you can either accept or refuse.
If you do refuse the alternative offer, the company has grounds to "dismiss" you due to incapacity due to ill health.
The rules for "medical unfit" is determined by the pension / provident fund you belong to, and medical evidence will have to be provided by the company to substantiate their claim, something their own in-house doctor already disproved by declaring you FIT for duty.

On the flip-side, if the doctor declared you fit, it is up to you to prove it not be the case, by for instance getting a second opinion, or third if you have to. If you do, you strengthen your employer's case for incapacity.

Back injuries are not clear-cut cases and is difficult to prove either way.

If my assumption is correct, there is also no claim for compensation from the SACF, as the injury was not caused by a work related accident.
If it did in fact arise from a work incident, then the picture changes somewhat and a report should be filed with the commissioner.
Just remember that the financial implications of being "boarded" not only affects your immediate income, but also your future job opportunities.

You asked about your rights...
If they do wrongfully terminate your services, you can do one of two things:
1. Consult with the CCMA as a matter of unfair dismissal, or
2. Consult with your attorney for a civil claim for damages. This is a costly option and you will have to prove your employer being at fault in making the decision to terminate your employment.
In either options, you could be reinstated, but it always leaves a bad taste in the relationship.

Good luck
Rudy Maritz
Legal Compliance Consultant
Cygma Consulting
Cape Town
Tel: 021 821 1737

Hendriknortje
Posts: 1
Joined: 04 Jan 2018, 13:35

Re: Medically unfit?

Unread post by Hendriknortje » 04 Jan 2018, 13:44

Goo day i have had an iod,i had a neck operation i july 2017 and have yet to return to work,i have developed compleks regional pain syndrome in my arm and neck and i have been for a work assesment,the occupational therapist says that i wont be able to do my own work anymore and that i am a good candidate for sedementary work,the neurologist that i am seeing isnt really telling me much about what i should do,and the work is saying that the are waiting to hear what the docter is saying,i dint know what i should do and how to proceed,any advice would be appreciated

tinus
Posts: 1728
Joined: 16 Apr 2009, 11:06

Re: Medically unfit?

Unread post by tinus » 05 Jan 2018, 08:29

Hi there

"the occupational therapist says that i wont be able to do my own work anymore and that i am a good candidate for sedementary work"

Your employer would need to follow the incapacity route (schedule 8 of the LRA).

Guidelines in cases of dismissal arising from ill health or injury

Any person 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.

Based on Code of Good Practice – Dismissal – Schedule 8 Labour Relations Act
Tinus Boshoff
Health and Safety Expert
SA Labour Guide Forum Team

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