Ill health, absenteeism and dismissal

Many employees take a few days’ sick leave every year to do battle with flu and colds; some may even be absent from work because of more serious illnesses. But there are a few employees who, suffering from chronic illness, are absent from work either on a regular basis or for extended periods of time. What are the employer’s options if the employee continues to be absent regularly or for longer periods of time? Naturally, it cannot be expected of the employer to accept such absences indefinitely — there will come a point at which termination of the employment relationship is the only real alternative for the employer. But would this be a dismissal for misconduct, a dismissal for poor work performance or a dismissal for ill health.

From misconduct to incapacity

Absenteeism itself is a recognised and, unfortunately, relatively common form of misconduct: the employee is not at work when he or she should be. This can range from being a few minutes late for a shift on the odd occasion to being considerably late on a regular basis. Usually, dismissal for misconduct would not be appropriate for a first offence of absenteeism; but if the absenteeism continues, more serious warnings and even dismissal may follow.

But can it be said that an employee who is regularly absent from work due to illness is guilty of misconduct? It can be argued that there is an important difference between the two forms of absenteeism: habitual absenteeism relating to an employee’s illness relates to the employee’s inability to work (due to ill health), absenteeism as misconduct entails the employee’s breaking a workplace rule. Different considerations apply: absenteeism arising from illness entails that the employee is unable to work and the illness is the underlying cause of the absenteeism.

This distinction is of considerable importance in practice because it relates to the reason for the dismissal. Is the employer dismissing the employee for misconduct (breaking a workplace rule) or is the dismissal dismissing the employee for poor work performance or ill health instead? This is a question a bargaining council arbitrator had to answer in NUMSA obo Cholani / Venture Otto SA (2005) 14 MEIBC 8.1.2. .

Illness and absence

The employee’s case was that she was dismissed when she exceeded her three year sick leave cycle by one day. She claimed that she became ill after her husband became ill in May 2004 and she had to care form him. She regularly suffered from flu and bronchitis. Later on, she received treatment for tuberculosis (TB) and eventually it was found that she was HIV positive and she received treatment in this regard. She did not know that she was under an obligation to inform her employer of her HIV status and the fact that she was receiving treatment. She feared disclosing her HIV status, thinking that the employer would dismiss her because of it.

The employer’s approach was completely different. Her dismissal arose because her sick leave pattern indicated that she was often absent from work on a Monday (7 out of 10 incidents) or before or after a paid public holiday (4 out of 10 incidents). The employee continuously changed doctors and the illnesses she reported to her employer kept changing. The employee received three counselling sessions and a meeting was held. To the employer it seemed that there was simply no end to the illnesses suffered by the employee and the employee could give no explanation as to why she was sick before and after public holidays and Mondays.

The employer’s evidence was that the employee was dismissed because her sick leave had a pattern, that the employee had consulted various doctors, that she had various illnesses, but that there was no plan forthcoming from the employee as to how to deal with these illnesses. The employee’s illnesses resulted in her frequent absences and these in turn had a disruptive effect, as other employees had to do her work and they then had to work overtime. There had been no indication from the employee that she was HIV positive — her HIV status was only disclosed to her employer in the course of the present arbitration proceedings.

The reason for dismissal

The bargaining council arbitrator was well aware of the distinction between misconduct absenteeism and incapacity absenteeism and came to the conclusion that the employee in this case was not dismissed for misconduct but for incapacity: poor work performance. Her poor work performance meant that she was not fulfilling her contractual obligations as employee. The question of fault or culpability was not pertinent in this case.

The employee confirmed, in her evidence, that she had received considerable assistance from the employer (including financial assistance with her domestic problems) and that she was provided not only with time off, but also granted unpaid leave on many occasions. But it was clear from the evidence that the employee had failed to comply with the employer’s performance standard and that her absenteeism had reached an unacceptable level.

Another argument raised by the employee was that it was patently unfair for the employer to dismiss her when she exceeded her sick leave entitlement by one day. But the arbitrator confirmed that an employer is entitled to take up incapacity cases even before an employee’s sick leave is exhausted. It would be unfair, the arbitrator continued, to expect an employer to wait until an employee has exhausted his or her sick leave before dealing with the employee’s absenteeism.

The employer’s performance standards

As indicated above, the arbitrator found this case to be one not of misconduct, but of incapacity in the form of poor work performance. This means that the crux of the case lies in the employee’s inability to meet the performance standards set by the employer. And on this point, the arbitrator found that the employee had failed to meet the employer’s performance standard as regards absenteeism: her absenteeism was at an unacceptable level.

When it comes to the performance standards set by the employer, the arbitrator in this case closely followed an important principle, namely that a commissioner should show deference to the employer’s standards and should interfere only if it is clear that the employer’s performance standards are unrealistic or irrational. In other words, it is up to the employer to set the standards, and, as a rule, these standards should be accepted. It is not for a commissioner or arbitrator to judge these performance standards unless they are clearly unrealistic or irrational.

In the present case, the arbitrator found that the employer’s standard was reasonable, given the nature of the employer’s business, the production process, industry norms and the adverse impact absences have on the business of the employer. The award does not, however, contain much information as to the employer’s business and the processes referred to. The arbitrator does, however, conclude that the employee was not only aware of the performance standards as regards absenteeism, but that the employee had also been given ample opportunity to improve her absenteeism. Procedurally, given the counselling and other steps taken by the employer, the dismissal was fair.

Older cases

In this award, some reliance is placed on recent decisions relating to the distinction between misconduct and poor work performance and the employer’s discretion to set performance standards. No recent decisions deal with the issue of persistent absences due to illness — those we do have pre-date the Labour Relations Act of 1995. But the issues and considerations remain, especially as regards the question whether the dismissal is for misconduct or incapacity.

The first relevant decision is AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 14 LAC 1.11.31 . The employee had been absent from work for a total of 90 days during a period just short of four years. He had received warnings to improve his attendance at work, but nothing changed. The employee was dismissed on charges of abusing sick leave, but the employer did not question the medical certificates presented by the employee. For this reason, the Labour Appeal Court held, the employer could not rely on misconduct, but only on incapacity of the employee. After referring to a number of even earlier decisions, the Labour Appeal Court concluded that the employer was entitled to dismiss the employee for incapacity if the incapacity was due to persistent absence from work because of ill health. At the time of this decision, the principles it laid down in respect of procedural fairness was of some importance. These principles have now been replaced (and, to a large extent, codified) in item 9 of the Code of Good Practice: Dismissal (Schedule 8 of the Labour Relations Act).

Another interesting decision is Henn v Eskom (1996) 14 LAC 1.11.32..The employer’s records indicated that the employee concerned had ben absent from work for a total of 93 days between 11 April 1994 and 11 November 1994 — as the Industrial Court put it, the employee had been absent from work for a substantial period. The Industrial Court concluded that the employer was fast approaching the point where it could not be expected to tolerate these absences any longer. But whether this point had in fact been reached was not for the court to decide — the employer had to provide some evidence that it had reached the end of its tether as regards the employee’s absences.

Principles

This bargaining council arbitration focused on the substantive fairness of the dismissal; it seems that procedural fairness was not an issue. Given the evidence presented, the arbitrator concluded that it would be unfair to expect the employer to continue with the employment relationship and that the employee was incapable of meeting the business requirements of the employer. The dismissal was held to be substantively fair.

One thing is clear from these cases: it cannot be expected of an employer to put up with an employee’s absences from work due to illness indefinitely. As regards substantive fairness, the question is whether the employer can be expected to continue the employment relationship, given the nature and extent of the employee’s incapacity. This is not perhaps the best formulation — after all, the question of fairness does not focus on the employer, but on the dismissal of the employee instead. Put differently: the question is whether the employee’s inability to meet the employer’s standards as regards absenteeism justifies the dismissal for incapacity, given the nature of the employer’s undertaking and the nature and frequency of the employee’s absences. Procedural issues remain: the employee must be counselled, given an opportunity to improve, and must be given an opportunity to make representations as to why he or she should not be dismissed.

While an employer may show sympathy, understanding and compassion, the fact remains that recurrent absences by the employee may lead to dismissal for poor work performance. Even the fact that an employee has not yet exhausted his or her sick leave entitlement does not preclude dismissal. An employee is expected to work, and, if he or she cannot do so, the employer may have no option but to consider dismissal.