By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
One category of employees who are well protected The Employment Equity Act (EEA) is those who are ill. Employers are prohibited from mistreating ill or injured employees, and risk a heavy price for breaching the EEA’s provisions.
Furthermore, where it is established that an employee’s genuine illness disables him from doing his work properly the employer is required to accommodate him by changing his job tasks, allowing him sick leave, providing him with assistance and any other support measure appropriate to the situation. While the law allows employers to look after the operational needs of the business, those needs are seen as secondary to the welfare of ill employees.
However, sick employees often cannot work properly, which is likely to result in reduced productivity and profits. Employers therefore often wish to place such employees on ill health retirement. While this is not inherently illegal there are stringent procedures required before an employee can be boarded.
One of the legal requirements are that the employer must get a medical report justifying the boarding of the employee. However, section 7 of the Employment Equity Act prohibits medical testing unless it is justifiable in certain circumstances. These circumstances include, amongst others, the medical facts, employment conditions and the inherent requirements of the job. This raises the practical question as to whether the employer is legally entitled to require the testing to be done by its own medical experts.
Employers that ignore the EEA’s provisions are likely to end up in very hot water. In the case of Solidarity obo Nel v National Metrology Institute of South Africa (SAFLII – 202744/2025) [2026] ZALCJHB 6 (5 January 2026) the employee was diagnosed with autism and major depressive disorder by his own therapists. One assessment warned that there was a possibility that Mr Nel would commit suicide. While the employer did implement some accommodatory measures it refused to implement further accommodatory measures until Mr Nel underwent further medical testing for purposes of assessing the appropriateness of boarding him. The Labour Court ruled against such further testing because the employer had not provided an explanation as to why the tests already conducted by the employee’s therapists were inadequate. The Court further ordered the employer to ensure a working environment conducive to Mr Nel’s health and interdicted it from engaging in conduct towards Mr Nel that constitutes harassment, coercion or victimisation linked to his disability.
While most established employers know that ill employees are protected, they still try to get away with breaching their legal rights. Proper training on the consequences of such folly will go a long way to avoid losing cases in the Labour Court.
While such training can be costly money wise and time wise, excellent training products are now available that cost very little and allow executives and HR/IR practitioners to access the learning material at times suitable to their busy schedules.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
