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In its current form Item 12.6 is obligatory and, as per the preamble (Item 2(4)) employers are only allowed to deviate from the “non-obligatory” provisions of the Code for good reason.
However, experienced labour lawyers are in agreement that an interpretation of Item 12.6 making “accommodation” compulsory cannot be sustained legally and that, provided an employer has fulfilled the requirements for a fair incapacity termination and can prove that it is incapable of accommodating the employee in another position, despite its best efforts to do so, the dismissal would be fair. Whether commissioners and judges will rule along these lines remains to be seen. Another tack may be for employers to go the operational requirements route arguing that, for economic reasons, it cannot accommodate the employee and enter into a section 189 consultation process. I have little doubt, though, that should Item 12.6 find its way to the Constitutional court, it will be found to be unconstitutional in that it impinges on the economic rights of the employer