Workplace discipline and incapacity are two of the most important yet often misunderstood areas of South African labour law. While misconduct relates to fault-based behaviour (where an employee chooses to break a rule), incapacity deals with situations where the employee cannot perform their duties adequately, despite willingness to do so.
Module 1 – Introduction to Incapacity in Labour Law
• Definition of incapacity vs misconduct.
• The role of the LRA and Code of Good Practice: Dismissal.
• Distinguishing poor performance from ill-health/injury.
• Why incapacity procedures matter for employers and employees.
Module 2 – Legal Framework for Incapacity Cases
• LRA provisions.
• Schedule 8 (Code of Good Practice).
• BCEA relevance (sick leave, working hours).
• Employment Equity Act (disability and reasonable accommodation).
Module 3 – Distinguishing Misconduct from Poor Performance
• Key differences.
• Progressive discipline vs incapacity process.
• Case law where employers confused misconduct with incapacity.
Module 4 – Identifying and Managing Poor Performance
• Performance standards.
• Setting KPIs and targets.
• Early identification and intervention.
• Informal counselling before formal process.
Module 5 – The Poor Performance Incapacity Process
• Step-by-step procedure.
• Performance reviews, counselling, training.
• Timeframes for improvement.
• Hearings and possible outcomes.
Module 6 – Ill-Health and Injury Incapacity
• Temporary vs permanent incapacity.
• Short-term vs long-term illness.
• Workplace injuries and employer obligations.
• Role of medical evidence.
Module 7 – Reasonable Accommodation & Alternative Work
• Duty to accommodate employees with disabilities.
• Modifying duties, hours, or workplace environment.
• Case law on accommodation vs undue hardship.
Module 8 – Substantive & Procedural Fairness in Incapacity Dismissals
• Fair reasons for incapacity dismissal.
• Procedural steps (consultation, evidence, alternatives).
• CCMA approach to fairness.
Module 9 – Remedies and Risks in Incapacity Disputes
• CCMA remedies (reinstatement, compensation).
• Automatically unfair dismissals (discrimination on disability).
• Employer risk management.
Module 10 – Best Practices in Incapacity Management
• Building a performance management culture.
• Integrating HR, payroll, and OH&S.
• Documentation and consistency.
• Future trends (mental health, hybrid working).
Anyone in HR.
