Monday, September 01, 2008

Although an employee is entitled to sick leave in terms of section 22 of the Basic Conditions of Employment Act 1997, it can be, and often is, abused.
Absenteeism has been defined as unauthorised leave by an individual who intends to return to work. One of the basic duties of an employee is to render services to her/his employer. A failure by an employee to render such services runs contrary to this duty, thereby undermining the very essence of the employment relationship.
The Labour Relations Act (LRA) recognises three grounds on which an employer can terminate an employeees contract of employment:

 Incapacity; or
 Operational requirements.

An employeees absence from work may be treated either as a form of misconduct or as incapacity, depending on the reason for the absence. In order for absenteeism to constitute misconduct the element of fault must be present.
Absenteeism can take different forms, ranging from unauthorised persistent but intermittent absences, or unauthorised periods of prolonged absences.
In cases of prolonged absences the dividing line between the category of misconduct and the category of incapacity is not easily and clearly drawn. There have been cases where employers have been criticised for approaching absenteeism as a form of misconduct, when in reality it was a clear case of incapacity and the employee concerned was incapable of rendering services to the employer for reasons of ill health or injury.
When dealing with cases of absenteeism that result from ill health or injury, an employer should have regard to the incapacity guidelines set out in the Code of Good Practice: Dismissal.
To justify dismissal in cases of absenteeism, the courts require the absences to be of unreasonable duration, or frequent enough to disrupt work. As with any dismissal, employers are required to follow a fair procedure when dismissing an employee for absenteeism.
In assessing the fairness of a dismissal for absenteeism, our courts normally consider the following factors:

 The reason for the employee's absence from work;
 The employee's employment history; and
 The employer's treatment of absenteeism in the past.

Where an employerrs disciplinary code provides for a scale of sanctions to be applied progressively in the case of time-related offences, such as absenteeism, an employer may not dismiss an employee at first instance, unless the period of absence is grossly unreasonable.
In the event that an employer has condoned absenteeism in the past, but now wishes to take a strong stance on this type of misconduct in the workplace, a communication can be sent to all employees.
The communication should state that although absenteeism may have been condoned in the past, going forward it will be dealt with as a form of misconduct and appropriate action will be taken against offending employees.
Karen Fulton is a director and Eva Mudely a senior associate at Bowman Gilfillan