Can you discipline an employee while he is on sick leave?
If the employee is genuinely sick, you must postpone the disciplinary enquiry. This is because it is one of the essential prerequisites of fairness and equity that the employee be afforded an opportunity to state his case in response to the allegations brought against him.
However, when it is clear that the employee is using sick leave to stall or otherwise hinder the disciplinary process, you are entitled to question the employee’s motives and act accordingly, and even proceed with the enquiry if he is not there.
In the case of Solidarity obo Van Vuuren v Volkswagen SA[2003] 10 BALR 1191 (CCMA), the employee challenged the procedural fairness of the disciplinary process because the outcome of her disciplinary enquiry was rendered in her absence while she was on sick leave.
The disciplinary enquiry also proceeded without the employee presenting evidence in against her sentence.
Taking the facts into account, the court held that it was probable that the employee had applied for sick leave to delay the disciplinary process.
The court found that the employer had been patient over an extended period of time while making numerous reasonable requests that the applicant submit mitigating factors and provide a medical reason why she was not able to adhere to such requests.
The employee had failed to respond to the employer’s requests to present mitigating factors.
The outcome of the disciplinary enquiry was also assessed by the court and it was held that, because of mitigating factors being considered in the employee’s absence, the decision to dismiss the employee was procedurally fair.
Why is this case important?
Employees who are genuinely ill can have their disciplinary enquiry postponed to allow them an opportunity to present their case. However, the courts will consider what is fair to both parties.
If the employer can provide facts showing that it is likely that the employee is abusing his or her sick leave, the employer may be entitled to proceed with the disciplinary enquiry in the employee’s absence. To avoid risk, the employer must have clear evidence in this regard.
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Jacques van Wyk is the director: labour and employment law at Werksmans Attorneys. He has a BA (LLB) from the University of Cape Town. He practises labour and employment law, as well as business crime and forensics law. Jacques was named as a recommended lawyer in Labour & Employment by the Legal500 (2010 - 2012) and he co-authored Labour Law in Action – A Handbook on the new Labour Relations Act – 1997 with Frances Anderson. |
