Dismissal of absent employees
Before November 1999, Delta’s rate of absenteeism was, on average, 3% – after the execution of a revised policy (to bring policies in line with the amended labour legislation), the rate increased to reach a high of 11, 5%. The increase was attributed to the new policy, which made provision for sick employees to receive their full wage for the sick period.
At this rate of absenteeism the company could not maintain its production levels, and had to employ emergency crews at an enormous additional cost. In March 2000, the sick absence control guidelines were communicated to employees. The guidelines included processes such as counselling, for the company to establish ways to assist sick employees, and for the employees to respond to concerns from the company.
Numsa declared a dispute. This resulted in the company’s Sick Absence Control Policy. It made provision for the definition of an “incident”, which was defined as any completed period of absence as a result of sick leave, irrespective of the number of consecutive days or absence. Injuries on duty, HIV-related sicknesses and chronic illnesses, determined by the medical department, were excluded.
Phase one made provision for an employee to receive an ‘absence letter’ if he had accumulated five incidents within 12 months. Where an employee accumulated a further five incidents of sick leave within 12 months of having received the letter, the employee would be counselled. When the employee accumulated another three incidents of sick absence within six months of having received the counselling referred to above, a Qualitative Assessment (QA) would be undertaken. Should the employee accumulate another two incidents within six months of the QA, an enquiry was to be held into the employee’s incapacity to give effect to his or her obligations. All employees who exceeded the 36-day sick leave allocation would be submitted to QA.
The employees concerned had all incurred a number of incidents. Some had refused to participate in the EAP and QA processes. They were ultimately dismissed as their sick leave absence did not improve. The applicants were dismissed for their inability to fulfill their contractual obligations – for practical purposes, incapacity.
The applicants in the matter did not provide any substantial reason to the employer to justify the rate of absenteeism. There was no improvement in their rate of absenteeism having been counselled and warned to this effect.
No evidence was submitted during the disciplinary inquiries or at the arbitration that the applicants suffered from chronic illnesses, or any illness for that matter. In light of this the dismissals of the applicants were regarded as substantively and procedurally fair.
This case illustrates a number of important points. The employer did not wait until the employees had exceeded their sick leave entitlement to act. Delta had negotiated a specific sick leave policy with NUMSA which set out an agreed counselling process for incapacity problems. Employees were therefore legitimately terminated when the process failed to improve their attendance at work.
The bottom line here is: by adopting the paradigm shifts and the process as set out in the Code of Good Practice, the headache of absenteeism and sick leave can be managed effectively, saving both time and money.
Author: Andrew Breetzke is a Director and Shareholder at D I Management Solutions consulting to a diverse range of corporate clients throughout South Africa in the area of Labour and Employment Law.
