National Union of Mineworkers & Another v Rustenberg Base Metals Refiners (Pty) Ltd (1993) 14 ILJ 1094 (IC)

Principle:

The criteria to be applied in deciding whether a dismissal for absenteeism due to sickness is reasonable are:

  1. the nature of the illness;
  2. the likely length of the continuing absence;
  3. the need of the employer to have the work done which the employee was engaged to do.

Facts:

The employer had dismissed the applicant employee, not for his physical incapacity to perform his duties due to ill health, but as an operational requirement because the employee's excessive absenteeism due to sickness made it virtually impossible for him to perform his contractual obligations. The Industrial Court having found that the employee's illness was not work-related, had to determine whether it was fair to expect an employer to keep an employee on indefinitely despite the fact that the employee was unable to fulfil his contractual obligations due to excessive sick leave.

The court referred to English law where there are two ways of dealing with this issue, namely frustration of the employment contract and the reasonableness of the employer. The criteria to be applied in deciding whether dismissal for sickness was reasonable are the following: (1) The nature of the illness. (2) The likely length of the continuing absence. (3) The need of the employer to have the work done which the employee was engaged to do. The test for reasonableness is statutorily defined, and it is clear that there must be consultation before dismissal.

The court said that although it is dangerous to lay down any general principles, there is a lesser duty on an employer when the illness is not work-related. What is required is discussion and consultation and in each case the question will have to be asked whether it is fair to expect the employer to keep the employee on indefinitely despite the fact that the employee is unable to fulfil his contractual obligations due to excessive sick leave.

Having applied the principles laid down in (1) to (3) above, the court came to the conclusion that the employee's level of absenteeism due to sickness had reached such a stage that it could not be expected of the respondent to keep him on any longer and that his dismissal was consequently fair.

Extract from the judgment:

(unnumbered paragraphs)

The question which arises is whether it is fair to expect an employer to keep an employee on indefinitely, despite the fact that the employee is unable to fulfil his contractual obligations due to excessive sick leave.

Under the common law an employee may be summarily dismissed on account of unreasonable absence due to illness (see Gibson South African Mercantile and Company Law (5 ed) at 229).

Whether such a dismissal would constitute an unfair labour practice is another question. Some writers are of the opinion that in principle it is required that a dismissal on account of incapacity/ incompetence should not only be lawful, but also fair. An investigation into an employee's alleged incapacity is required (see Brassey et al The New Labour Law at 445). It further seems that a process of consultation is required (see Cameron et al The New Labour Relations Act at 154).

In English law there appear to be two ways of dealing with this issue, namely frustration of the employment contract and the reasonableness of the employer. The common-law principle of frustration applies to contracts of employment and is based upon the proposition that a contract of service is a contract of personal service. Consequently it can only be performed by the contracting parties, and it will be discharged where either party is incapable of performing his contract due to circumstances beyond his control, ie the agreement as envisaged between the parties has become impossible and is frustrated (see Mead Unfair Dismissal Handbook (3 ed) at 156).

Where the contract of employment is frustrated, it is terminated by operation of law and there is no dismissal under the statute. Consequently, the employee is unable to make a claim for unfair dismissal. It follows that in unfair dismissal cases it benefits the employer to assert that the contract has been frustrated, and for the employee to allege that it has not (see Harvey on Industrial Relations and Employment Law vol I II 127).

Incapacity due to sickness may be a frustrating event. In deciding whether the employee's incapacity renders future performance impossible or radically different from that which the parties envisaged when entering the contract, the National Relations Court held in Marshall v Harland & Wolff Ltd (1972) 7 ITR 150, that the industrial tribunal should take the following factors into account:

  1. The terms of the contract, including the provisions as to sickness pay;
  2. how long the employment was likely to last in the absence of sickness;
  3. the nature of the employment;
  4. the nature of the illness or injury and how long it has already continued and the prospects of recovery;
  5. the period of past employment.

The Employment Appeal Tribunal held in Spencer v Paragon Wallpapers Ltd (1977) ICR 301 that the questions whether the contract has been frustrated and whether dismissal for sickness is reasonable in the circumstances are distinct. There may be an overlap between the criteria to be applied in answering these questions but the criteria are not identical.

The criteria to be applied in deciding the question whether the dismissal for sickness was reasonable are inter alia the following:

  1. the nature of the illness;
  2. the likely length of the continuing absence;
  3. the need of the employer to have the work done which the employee was engaged to do.

What seems to be clear from the cases dealing with such a dismissal is that there should be consultation before dismissal. The need for consultation was described as 'well established' and as 'a elementary requirement of fairness' by the Employment Appeal Tribunal in Williamson v Alcan (UK) Ltd (1978) ICR 104.

In English law the test of reasonableness is found in s 57(3) of the Employment Protection (Consolidation) Act of 1978, which reads inter alia as follows:

'[T]he determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and that question shall be determined in accordance with equity and the substantial merits of the case.'

In South African law there is not a similar statutory test of reasonableness. The common law governs the test of reasonableness and it is trite law that the Industrial Court determines an alleged unfair labour practice on the basis of fairness and equity.

Although there is not a statutory test for reasonableness in South African law, in my opinion, an employer's conduct in dismissing an employee for sickness should be considered at the hand of reasonableness and fairness. I am not suggesting that the reasonable employer test, as applied in English law, should apply here, but that the circumstances of each case be considered to determine the fairness or otherwise of a dismissal for sickness. It further seems more appropriate to deal with these cases on the basis of reasonableness and not on the basis of the frustration of the contract. I am of the opinion that there should be discussion and consultation before dismissal for sickness. In the Spencer case the Employment Appeal Tribunal, when considering the need for warnings in dismissals for sickness, commented as follows:

'Obviously the case of misconduct and the case of ill-health raise different considerations, but we are clearly of the view that an employee ought not to be dismissed on the grounds of absence due to ill-health without some communication being established between the employer and the employee before he is dismissed. The word "warning" perhaps is not appropriate, for by its association with cases of misconduct it carries with it [the] suggestion that the employee is being required to change or improve his conduct. That is not the case where the absence is due to ill-health, and it is possible to imagine cases of ill-health where some damage could be done by a written warning unaccompanied by a more personal touch.'

I am in full agreement with those comments.

It must be borne in mind that in hoc casu the second applicant was not dismissed for his physical incapacity to perform his duties due to his ill health. He was dismissed as an operational requirement because his excessive absenteeism due to sickness made it virtually impossible for him to perform his contractual obligations. There was no evidence that, when he was at work, he could not perform his duties. It was because of his absenteeism that he could not fulfil his contractual obligation.

The basic question to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer, and if so, how much longer?

In hoc casu the second applicant has been absent from work due to illness on a number of occasions during his period of employment with the respondent. He has been counselled a number of times with regard to his absenteeism. During the six months prior to his termination of service his absenteeism has escalated to such a degree that, in my opinion, the employer could tolerate it no longer.

In applying the principles laid down in the Spencer case to the present case I find the following:

  1. The nature of the illness: The court cannot really determine the nature of the illness because of the numerous different ailments that have been diagnosed. As stated above in the relatively short period between the last counselling session (25 July 1991) and the dismissal (8 August 1991) the second applicant has consulted five different doctors who diagnosed four different ailments.

  2. The likely length of the continuing absence: I find it highly likely that the illnesses would have continued for a considerable time. It has escalated over the last couple of months prior to the second applicant's dismissal and it is in fact still continuing.

  3. The need of the employer to have the work done which the employee was engaged to do: Although there was no direct evidence on this issue, one can safely assume that there was indeed a need for the respondent to have the work done otherwise it would most probably not have dismissed the second applicant.

Although it is dangerous to lay down any general principles, I am of the view that there is a lesser duty on an employer when the illness is not work related (cf the SA Breweries and Clean Deale cases). What is required is discussion and consultation and in each case the question will have to be asked whether it was fair to expect the employer to keep the employee on indefinitely, despite the fact that the employee is unable to fulfil his contractual obligations due to excessive sick leave.

Taking all the circumstances into account I come to the conclusion that the applicant's level of absenteeism due to sickness had reached such a stage that it could not be expected of the respondent to keep him on any longer and that his dismissal was consequently fair.

The application is dismissed and no order is made as to costs.