An employer is not expected to endure an employee’s prolonged absence from work for incapacity due to ill health and it may, if it is fair in the circumstances, exercise an election to terminate the employment relationship.
Introduction
It should be mentioned that an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. Furthermore, an employer may, if it is fair in the circumstances, exercise an election to terminate the employment relationship. This was the position the Labour Court had taken in the matter of Epibiz (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others .
Background
The employee, Lorraine Jordaan, was employed by Epibiz (Pty) Ltd (the Company) in the position of credit manager. During May 2016, the employee was suspended and following a disciplinary hearing in respect of six charges of misconduct, the employee was found not guilty on all charges on the 17th of August 2016. Following the employee’s acquittal, the employee was requested by the Company to return to work on the 24th of August 2016. She failed to do so.
Instead, the employee furnished the Company with a medical certificate which provided that she was unfit to return to work until the end of August. At the end of August, the employee returned to the same doctor for another medical certificate, this time booking her off until the end of September. The employee subsequently obtained two more medical certificates from the same doctor, each successively booking her off until the end of November. All the medical certificates recorded that the nature of her illness was ‘Consultation’.
During this period, the employee had obtained assessment reports from a clinical social worker, who opined that she had been traumatised by her suspension and the subsequent disciplinary proceedings and, as a result, had symptoms of anxiety and
depression. The social worker recommended that the employee not be required to return to work in order for her to be able to effectively begin her ‘healing process’.
The Company sought to engage with the employee’s representative on numerous occasions regarding the employee’s medical condition, but to no avail. Further, during the employee’s absence from work, the employee proposed that the Company make a claim for compensation to the Compensation Fund as she was ‘injured’ on duty. The Company refused to do so on the basis that it would be party to a fraudulent claim. The employee also asked to be retrenched, which the Company similarly refused as it sought clarity on the employee’s medical condition called ‘Consultation’.
Months later, the Company wrote to the employee’s consultant confirming that it had been without the employee’s services for a number of months and could not reasonably be expected to keep her position available for an indefinite period. Consequently, the employee was provided with an opportunity to make written representations as to why her services should not be terminated on the grounds of incapacity due to illness, or because she had reached the normal retirement age, or both.
In response, the employee’s attorneys of record advised the Company that before dismissing the employee for incapacity due to ill health, it was obliged to investigate alternatives short of dismissal and, in this regard, proposed that the employee be entitled to work from home, alternatively that her employment be terminated by mutual agreement. The Company rejected the proposal and proceeded to terminate the employee’s employment.
CCMA
Aggrieved by her dismissal, the employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The Commissioner found that the Company had not followed the procedure set out in schedule 8(10) of the Code of Good Practice: Dismissal (the Code). Further, based on the medical certificates and reports issued by the clinical social worker, the Company was aware of the employee’s condition and ought to have been prudent and considerate in approaching her situation.
In this regard, the arbitrator found that the Company ‘was hasty when it decided to terminate the employment relationship’ and accordingly that the employee’s dismissal was procedurally and substantively unfair.
Labour Court
Disenchanted with the Commissioners’ findings, the Company took the award on review. The court found that the Commissioner had ‘spectacularly’ misconstrued the guidelines set out in the Code dealing with incapacity due to ill health or injury. The Commissioner therefore misconstrued the law as the Company was entitled to suspend, charge, and discipline the employee if there was prima facie evidence of misconduct.
The evidence before the Commissioner demonstrated that the Company had made various attempts to ascertain the true reasons for the employee’s prolonged absence from work. However, all the Company’s efforts had been frustrated by the employee and her representatives. During cross-examination, the employee was asked to explain the illness called ‘Consultation’, she could not.
The treating doctor did not depose to an affidavit to substantiate the nature of illness recorded, nor was the doctor called by the employee to give oral evidence during the arbitration proceedings.
Accordingly, the court found that the medical certificates and reports furnished by the doctor and social worker, respectively, amounted to hearsay evidence. The court also found the employee had conceded that it was not possible to perform her duties from home. As credit manager, she was constantly in contact with her colleagues and clients and required access to confidential working documents. While she remained at home on full pay, not
once did she request that she be allocated work to demonstrate that she could seamlessly work from home.
Given this fact, the Company had no alternative but to terminate the employee’s employment. Instead of capitalising on her victory in the disciplinary hearing, the employee had chosen not to exercise her right to resume work.
The award was thus set aside and substituted with an order that the employee’s dismissal was procedurally and substantively fair.
Key Findings
The court held that an employer is not expected to endure an employee’s prolonged absence from work for incapacity due to ill health and it may, if it is fair in the circumstances, exercise an election to terminate the employment relationship.
Conclusion
If an employer’s efforts to get an employee to return to work are frustrated by the employee and if incapacity due to ill health justifies dismissal, an employer is entitled to dismiss the employee for prolonged illness.
by Ross Simon
© Maserumule Corporate Employment Law – September 2024
