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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which deals with "Challenges in managing absenteeism". We also discuss three new cases: The first case looks at where misconduct is connected to disability. The second case considers whether persistent intermittent absence from work is a form of incapacity justifying dismissal. The third case concerns the standards for review, highlighting that errors by the arbitrator may not be enough to succeed in a review application.

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Where disability and misconduct are intertwined

An employee, employed as a paralegal by Legal Aid, was dismissed at a misconduct enquiry for 17 days' unauthorised absenteeism, insolence, and a refusal to obey a lawful instruction. He referred to the Labour Court both an automatically unfair dismissal claim in terms of section 187(1)(f) of the LRA and an unfair discrimination claim under section 6 of the EEA. In both disputes, the employee claimed that the employer unfairly discriminated against him on the ground of his disability.

Because the employer for some reason declined to lead any evidence at all, the court based its decision on the employee's evidence and that of his witness. The court was satisfied that the employee raised a credible possibility that the dominant reason for the dismissal was his mental condition - at the very least his condition played a significant role or influenced the decision to dismiss him.

A month before the disciplinary hearing the employee had brought to the attention of his immediate supervisor as well as Legal Aid's National Human Resources Executive and CEO, his disability of reactive / manic depression. The Labour Court in Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018) held that where an employer has knowledge that an employee has a disability, the employer is under a duty to reasonably accommodate the employee. Instead of dismissing the employee for misconduct, the employer had a duty to institute an incapacity enquiry.

The LC held that the dismissal of an employee for misconduct, who suffers from a mental condition which the employer is aware of, in circumstances where the acts of misconduct are inextricably intertwined with the employee's mental condition (ie his disability), constitutes an automatically unfair dismissal and unfair discrimination.

The employer was ordered to reinstate the employee with full retrospective effect; to pay compensation equivalent to six month's salary and the employee's legal costs.

Leaving aside the unusual decision of the employer not to lead any evidence about the acts of misconduct, the case raises the appropriate and fair way for an employer to treat misconduct when it is intertwined with or related to a disability. In this case we can understand that taking sick leave can be directly linked to depression, but it is more difficult to understand how the failure to notify or seek permission for the sick leave is necessarily a result of depression. It could be, but the obligation or common courtesy to send a SMS notifying the employer of the absence is not a heavy one. And not to notify the employer on 17 occasions begins to look like wilful disregard of basic workplace duties. But we recognise that depression can be a very complex disability and seemingly mundane tasks may become an apparently insurmountable hurdle.

Turning to how an arbitrator should decide if a dismissal is for misconduct or because of a disability, the LC said that in assessing the reason for a dismissal, 'factual causation' as well as 'legal causation' must be considered. Factual causation asks whether the dismissal would have occurred if there was no disability. Legal causation asks whether the disability was the most likely cause of dismissal. Because the employer did not lead evidence in this case, it was possible for the employee to establish factual and legal causation between the disability and the dismissal.

This case is a reminder that where an employer has knowledge that an employee has a disability, the employer is under a duty to reasonably accommodate the employee. That means at the very least to hold an incapacity hearing rather than a misconduct enquiry. Termination may still result, but that decision will be made with full knowledge of the incapacity / disability and only after considering the required remedial measures.

Incapacity arising from persistent intermittent absence from work

In a recent case, each of the individual respondents had exceeded the 30-day sick leave limit, and all of them took further sick leave. As a result incapacity enquiries were convened in respect of each of them. This was done in accordance with a collective agreement on sick leave.

The notices issued to the employees stated that they would be consulted on their capacity to fulfil their job functions and render services in the manner agreed upon in their contracts of employment. The employees were further invited to submit any additional evidence related to the medical conditions which they considered relevant to the enquiry.

In each case, the respective chairpersons found that the employees did not have the capacity to meet their contractual obligations on account of excessive sick absence and in each case, decided that the sick absence trend was not likely to improve, and that the employer could not fairly be expected to continue with the employment relationship. The employment of each of the employees was terminated.

The employees disputed the fairness of the dismissals and referred disputes to the CCMA. These disputes were consolidated for the purposes of the arbitration proceedings under review. The arbitrator found that the dismissals were procedurally and substantively unfair. The basis for this was that: (1) the inquiries that the individual respondents all faced were not incapacity inquiries as envisaged by the Code; they were inquiries into a failure to comply with contractual obligations. (2) Inquiries of this nature were inappropriate; the applicant ought to have conducted ill-health incapacity inquiries. (3) Absence from work is not in itself indicative of any incapacity to work; the individual respondents could do their work when they were at work. The arbitrator found that the employer had therefore failed to establish incapacity on the part of any of the individual respondents and its failure to follow the prescribed procedure for conducting incapacity hearings rendered their dismissals substantively and procedurally unfair.

On review in General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (PR206/2016) [2018] ZALCPE 10 (30 January 2018), the Labour Court did not agree with the arbitrator's views, and the dismissals were found to be procedurally and substantively fair. The employer, having accepted the authenticity of the medical certificates, was entitled to rely on the employees' incapacity. Significantly, the Court held that arbitrators are obliged to recognise a category of incapacity arising from persistent intermittent absence from work, and the arbitrator's failure to do so constituted an error of law.

The LC held that the case against the individual respondents was not that they had breached their employment contracts or that they had breached any workplace rule. The fact that they were unable on grounds of incapacity to attend at work with a frequency that their contracts of employment required, did not have the effect of migrating the issue from capacity to conduct - the employer was fully entitled to treat the matter as it did, as a case of incapacity that resulted in a failure to meet acknowledged contractual obligations relating to attendance at work.

The substantive fairness of an incapacity (ill health/injury) dismissal depends on whether the employer can fairly be expected to continue the employment relationship, bearing in mind the interests of the employee and the employer and the equities of the case. Relevant factors would include the nature of the incapacity; the cause of incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer's operations; the effect of the employee's disability on other employees; and the employees work record and length of service.

When can an arbitration award be reviewed?

Following their participation in a 3 week protected strike in the construction industry, the employees returned to work on Friday, 13 September 2013, but were not allowed to work their Saturday overtime shift the next day, despite sub-contractors being entitled to work. Aggrieved by this, the individual respondents came to work on the Saturday - the events of which resulted in them being charged and subsequently dismissed for the "intimidation of sub-contractors and management and / or engaging in undesirable activities leading to the shut-down of the site on 14 September 2013".

At the CCMA the commissioner found the dismissal of the employees to be substantively unfair (because of an absence of guilt) and awarded them retrospective reinstatement. This decision was based on three findings: (1) it was wrong to issue the instruction that the Saturday overtime shift would not be worked; (2) the alleged rationale for the instruction - ie that management did not have time to plan - was without merit; and (3) "confusion reigned supreme" on the Saturday. The commissioner held that there was no evidence of intimidation.

At the Labour Court in WBHO Civil Construction (Pty) Ltd v Hlatshwayo N.O. and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018) the company sought to set aside the award. The LC found that the commissioner's finding that the employees were not guilty of intimidating sub-contractors was unreasonable. Based on video evidence it was clear that they were guilty of intimidating sub-contractors while outside the entrance gate after the employees had left the site.

Despite this, the LC decided not to interfere with the commissioner's decision that the dismissal of the individual respondents was substantively unfair and that they should be reinstated, because it could reasonably have been found at arbitration that the sanction of dismissal was unfair in the peculiar circumstances of this matter. This would then have justified the decision and the reinstatement award. But, the Court said, the commissioner's award of back-pay stood to be reviewed and set aside because, in circumstances where the individual respondents were guilty of intimidating sub-contractors, a reasonable decision-maker would have deprived them of back-pay as a mark of disapproval of their misconduct.

The judgment begins with a reminder that the LRA restricts the scope of review, saying that "mere errors of fact or law may not be enough to vitiate the award. Something more is required." Where on all the material before the commissioner, the result is reasonable, errors and misdirections on the part of the commissioner in arriving at his or her conclusion are of no consequence.

This judgment is an important warning to parties seeking to take an award on review. In arbitrators' awards, errors or misdirections in themselves do not give rise to a ground for review; they only do so if the "distorting effect" of those errors is to produce a substantively unreasonable outcome. The intention of the legislature was to restrict the scope of review when it enacted s 145 of the LRA, confining review to 'defects' as defined in s 145(2) - being misconduct, gross irregularity, exceeding powers and improperly obtaining the award. This judgment sets a high bar for review. Would-be litigators should take heed!

ARTICLE: Challenges in Managing Absenteeism

By Prof Alan Rycroft

Based on the number of Worklaw helpline queries we receive on the topic, it is clear that a common complaint of employers that there is extensive abuse of sick leave in South Africa. It is said that the BCEA has too many loop-holes. No medical certificate is needed for the first two days of sick leave. Some doctor's certificates do not comply with the requirements of the Medical & Dental Council. Traditional healers' certificates are unregulated. Comprehensive strategies need to be put in place to manage sick leave abuse if it is a substantial problem within an organization.

Prof Alan Rycroft analyses the cases dealing with this topic, building on the case of Jansen v Legal Aid South Africa (C678/14) [2018] ZALCCT 17 (16 May 2018) discussed above. He suggests the framework of a strategy to manage excessive absenteeism at the workplace.

Read more (note - only available to Worklaw subscribers)

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Bruce Robertson
July 2018
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