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August 06, 2016

Medical Boarding - dismissal for incapacity

A visitor to my website asked: ‘We are in a position where we may have to medically board two staff members but cannot find sufficient information regarding this subject on the internet…’

One needs to consider Schedule 8 of the Labour Relations Act which sets out the procedure for medical boarding / incapacity. If you are considering getting rid of a staff member because of incapacity caused by ill health or injury, there are steps that you need to follow so that the employee doesn’t cry ‘foul!’ Contact me if you need guidance.

10. Incapacity: Ill health and injury

(1)  Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.
(2)  In the process of the investigation referred to in subsection (1) the employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
(3)  The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling and rehabilitation may be appropriate steps for an employer to consider.
(4)  Particular consideration should be given to employees who are injured at work or who are incapacitated by work-related illness. The courts have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.

11.   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—
(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable—
(i) the extent to which the employee is able to perform the work;
(ii) 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
(iii) the availability of any suitable alternative work.

July 31, 2016

Naming and Shaming on Facebook

Beware of publishing a post on Facebook or Twitter and other social media platforms, listing the name of a person (or company) that has committed some alleged transgression, to single them out for individual blame and censure.

What does our law say about, e.g., outing sex offenders and paedophiles, in a post?You ‘defame’ someone when you ‘publish’ a ‘defamatory’ statement about another living person. If you ‘like’ or ‘retweet’ a defamatory post on Facebook or Twitter, you could also be equally guilty of defaming the named and shamed person.

“Publish” takes the form of any form of communication, spoken or written, containing an allegation about someone that’s communicated to at least one other person apart from the person named.

“Defamatory” refers to any allegation that would tend to lower that person’s standing in the eyes of “right-thinking people”. 

There are defences to defamation, that protect freedom of speech and serve the public interest. Thus an allegation is protected if it both true and in the public interest. If it can be shown that the allegations of, say, being a sex offender, are true, the named person can’t cry foul.

If there are no defences, the publisher of a defamatory post could be sued for damages and, in certain instances, a court could order that the post be removed.

Think twice before naming and shaming someone on social media.