Litigation

An enviable track record in CCMA, Bargaining Council & Labour Court litigation

Training

Customised training solutions crafted to ensure knowledge and skills transfer

Consulting

Our accomplished team of professional consultants render practical, sound labour law solutions

http://www.tonyhealy.co.za/components/com_gk2_photoslide/images/thumbm/250372litigation_banner.jpg http://www.tonyhealy.co.za/components/com_gk2_photoslide/images/thumbm/906307training_banner.jpg http://www.tonyhealy.co.za/components/com_gk2_photoslide/images/thumbm/807581consulting_banner2.jpg
JOHANNESBURG · DURBAN · CAPE TOWN · PRETORIA · STELLENBOSCH
Home Archive Unfair Labour Practices Ill health absenteeism requires investigation
Saturday, 18 November 2017
Ill health absenteeism requires investigation

Prolonged employee absenteeism due to ill health presents employers with a conundrum as lengthy or habitual absenteeism impacts on productivity. One thing is certain, employers may not simply dismiss employees who are absent for a lengthy period, or have a pattern of habitual absenteeism. Our courts have developed an empathetic approach to employees suffering from ill health. On the other hand, it is understood that employers interests are similarly legitimate and employers cannot be required to preserve the employment of long-absent employees indefinitely ad infinitum.

Schedule 8 of the LRA makes it quite clear that prior to taking any steps against an employee absent on grounds of ill-health the employer must conduct an investigation into nature and extent of the employees illness, and whether the resultant absenteeism expected to be prolonged or not. In addition, the employer must seek to establish whether the employees job can be adapted to accommodate the employees condition.

Thats not to say of course that employees themselves dont have aduty to communicate with their employers in such circumstances as they clearly do; but our law, rightfully, contemplates circumstances where the employees illness may render him or her incapable of communicating at all or lucidly (such as cases of extreme trauma or mental illness).

Investigations of this nature ordinarily include contact with the employee if possible, medical staff and family.

This would address the so-called substantive fairness aspect of any subsequent dismissal, and would include the employee being warned that their ongoing employment relationship with the employer is in jeopardy.

From a procedural fairness perspective, the employee must also be afforded an opportunity to make representations to the employer prior to any dismissal decision being finalised, ensuring that any decision to dismiss is not made hastily.

Employers would differ in their ability to condone ill health absenteeism as well as their ability to seek alternative positions for the employee or adapt their duties. For example, a municipality employing many thousands of employees would be expected to be more capable of doing so than a small or medium sized enterprise.

In NEHAWU & another v SA Institute for Medical Research [1997] 2 BLLR 146 (IC) the employee had taken 475 days sick leave during her six years of employment prior to being dismissed on grounds of absenteeism due to her ill health. It was held that the dismissal of the employee was fair as the employer had consulted with her on three occasions, warning her each time that continued absences would jeopardise her employment.

In the final analysis, a methodical investigation by the employer into the nature and extent employees illness, followed by a hearing to assess whether the employee is capable of returning to work timeously is required. Add to this an exploration of alternative positions or altered duties, if possible, and a hearing to assess each of these aspects of the case. Dismissal may then be justified albeit reluctantly given the employees predicament.

Follow Tony on Twitter at @tony_healy

First published in The Star Workplace on 9 September 2015