Dismissing an employee for absenteeism can be problematic when it appears that the reason for absence was a chronic medical condition. The difficulties that an employer might face in these situations were illustrated in a recent arbitration in favour of the National Union of Mineworkers of SA (Numsa) against Rewu and Borbet SA (Pty) Ltd.
The company had introduced a “Sick Absence Control Procedure” (SACP)due to problems experienced with absinteeism. The trade union had agreed to this procedure, which involved taking the empoyee through various phases. If absinteeism reached a certain level, it was regarded as a failure by the employee to meet the performance standard set by the company and the employee’s services could be terminated.
On the evidence,the employee had taken 52 days sick leave over 2 years. As the employee had been taken through the SACP, the presiding commissioner found that the level of absinteeism was unacceptable. The commissioner found that the employee had failed to meet a reasonable performance standard set by the company even though he had been given edequate opportunity to improve his attendance record.
The problem for the company in this case, however, was that the SACP did not apply to incidents of absence due to chronic illness. It was established at the arbitration hearing that the employee’s absences were due to ill health caused by his HIV-positive status. This information did not emerge during the process that led to his dismissal. The company’s position was that it was the employee’s right not to divulge the type of illness he was suffering from.
The arbitrator found that the company had not investigated the degree and nature of the employee’s alleged incapacity – nor had it considered any alternatives short of dismissing the employee, as required by the relevant Code of Good Practise. He concluded that an incorrect procedure had been followed and that the dismisal had been unfair. The employee was reinstated with back pay.
Conclusion: Even where there is an agreed procedure to curb absinteeism, the employer has to consider whether that procedure is appropriate in the circumstances. There are no short-cuts