DCS News
ABUSE OF SICK LEAVE & UNAUTHORISED ABSENTEEISM |
| 2011/08/01 |
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Abuse of sick leave, unauthorised absenteeism, abscondment and desertion If the employer experiences abuse of sick leave, certain measure and policies can be implemented to address this. One such measure is a caring or “catch-up” discussion on the return of the employee. A return to work policy is one whereby employees are interviewed by their managers on returning to work. This makes employees uncomfortable if they have been fraudulently ill, and it makes them feel cared for if they genuinely have been sick. Body language such as guilty looks, avoiding the discussion, vagueness of over defensiveness during such a discussion, may be a telltale or prompt for the manager to start watching out for trends of abuse or problems. However, managers should note that they cannot assume an employee has been lying about being ill, but the meeting will hopefully leave the abusers feeling embarrassed, which may be an effective way of stopping the early abuse in its tracks. The worst strategy with sick leave abuse and frequent absence is to ignore it, hoping that it will disappear or sort itself out. More often that not, if left unattended, the frequency and period will increase and it is often coupled with other misconduct such as fraud, late coming, poor performance, poor relations with other employees and insubordination. A study of sick leave information from more than 60 companies in South Africa with over 150 000 employees showed that Monday and Friday are the favourite days for abusers. Flu, gastro and lower back pain are the serial sickies' ailments of choice, statistics show. These illnesses are relatively easy to fake, therefore presenting itself to employees as good reasons to take a day off. These illnesses have quick recovery times, making it more likely that a person who took the false sick leave could show up the next day looking fine, without raising too many suspicions. Doctors can also be fooled when a patient says they have a headache, or describe the same flu virus symptoms as everyone else. Anther problem is when employers have codes of conduct on sick leave, absence and abuse of sick leave, but those codes are not consistently applied by manager. Rules are loosely applied and depend on the mood or attitude of the manager. Employees will surely abuse this sloppiness, causing a frequency of abuse. Another problem is that a lot of employees feel they are owed the sick leave and if they don't use it, they lose it. Sick leave is not an entitlement, it is a benefit that the employee may apply for if the requirements (policies of the employer are being met, such as a valid sick note). Abusing sick leave is paramount to fraud and can lead to dismissal[1]. In some cases the abuse of sick leave can be of such an extend that the employee effectively proved himself to be incapacitated. This happened in NUMSA obo Gwadela / Halberg Aluminium[2] the applicant was dismissed after he exceeded the 30 days’ sick leave stipulated as the limit by the respondent’s absenteeism policy. The employee denied that he had abused his sick leave, and claimed that most of his absences had been the result of backache induced by the loss of two young children. The commissioner found that, although there was some dispute over which version of the absenteeism policy applied, it was clear that the manner in which the respondent handled absenteeism caused by illness, was consistent with the principles laid down by labour legislation, and underscored the fact that employees whose absenteeism exceeds a certain level have proved themselves incapable of discharging their contractual duties. The employee had chosen not to attend counselling sessions and had proffered explanations only at the final disciplinary hearing. He was the architect of his own misfortune. In Imatu obo F.A Ward v Ethekwini Municipality[3] the applicant was absent without leave for approximately 20 days without notifying employer of his whereabouts. Such absence had had a negative impact on staff morale and on emergency responses and was generally excessive. The applicant’s general statement that he was still ill was not supported by other evidence and was contradictory and evasive. The respondent had therefore proved that applicant was absent without leave or good reason from 2 July 2008 to 22 July 2008. While employers had a right to challenge a medical certificate, a medical expert had testified that the applicant’s medical certificate for the limited period of 9 June 2008 to 30 June 2008 was genuine and authentic. The respondent’s refusal to entertain applicant’s medical certificate was therefore a serious procedural irregularity amounting to unfairness. The fact that an errant employee might have little or nothing to show in his own defence does not affect his entitlement to a fair hearing. In the circumstances, the dismissal of applicant was found to be substantively fair but procedurally unfair, entitling him to just and equitable compensation, calculated at his rate of remuneration as at the date of dismissal. Fair compensation for the applicant in this case was the equivalent of three months salary. Other forms of abuse are that of desertion, abscondment or absence without permission. In SACCAWU obo Khakhatiba / Country Meat Market (Pty) Ltd[4], after the respondent discovered large scale losses through theft, it instructed members of staff, including the applicant employee, to subject themselves to polygraph tests. The applicant failed the test. According to the applicant, she was immediately dismissed. According to the respondent, the applicant was merely told that she could no longer work as a cashier, after which she absconded. As to whether the employee was dismissed, the commissioner noted that a distinction is to be drawn between abscondment, desertion and absenteeism. The former is deemed to have occurred when the employee has been absent from work for a time that warrants the inference that the employee no longer intends to resume work. Desertion is deemed to take place when an employee expressly intimates that he will not resume work. In all such cases, the onus rests on the employee to explain the absence. In NUM & another v CCMA & others[5], the employee, was arrested for the death of another person, which was not work related. The employee was eventually convicted on a charge of culpable homicide and sentenced to five years’ imprisonment. Soon after starting his sentence, his term of imprisonment was changed, for some reason, from five years to 10 months. He was informed by the employer that, because he was no longer able to work, he had repudiated his contract of employment and that the employer had accepted this repudiation. The CCMA commissioner, charged with arbitrating an unfair dismissal dispute, found that no dismissal took place in this case. The employment contract automatically terminated because of impossibility of performance on the part of the employee. The employee was the author of his own misfortune. According to the commissioner, there was no dismissal because the contract of employment “automatically” terminated as a result of the impossibility of performance. This finding by the commissioner was overturned in the labour Court. The Court noted that when the employer was informed that the employee was in prison and accordingly unable to perform his duties, it had expressly accepted the employee’s “repudiation” and cancelled his contract with immediate effect. The only reason given by the commissioner for the conclusion that the termination did not constitute a dismissal was that the contract terminated “automatically” because the employee was unable to perform his duties. This, the court found, conflicted with a number of judgments of the Labour Court to the contrary, and was clearly wrong. The commissioner had also made no effort to establish whether the incapacity in casu was temporary or permanent or, if temporary, whether the period of absence was reasonable. The Court concluded that the commissioner’s finding was unreasonable. Mdlasose v Ethekwinin Municipality[8] considered the requirements to be applied by an employer in determining whether absenteeism is acceptable or not. It was held that the reasons for the applicant's absence, the length of absence, the nature of his work, previous warnings and whether the employee had attempted to contact the employer during the period of absence should all be considered. The applicant had been absent from the 27 December 2006 to July 2007. While the applicant did not contact respondent during his absence, the respondent had attempted to locate the applicant. Furthermore, the applicant had not called evidence of the traditional healer by whom he claimed to have been treated for seven months. His later application to re-open proceedings to call the traditional healer was properly rejected. In the circumstances the applicant had failed to explain his absence or to show good cause why he should be reinstated. His dismissal was substantively and procedurally fair. It is a required of the employer to show that the employee did not have an intention to return to work in order to claim abscondment or desertion. In Mtshinindo v Cashbuild Hillfox[9], the applicant employee, was dismissed after six days’ absence from work. He claimed that his wife had telephoned the manager of the store at which he worked and informed him that he was being treated by a sangoma. The respondent claimed that the applicant was not dismissed, but that his employment had terminated automatically in terms of the disciplinary code, which deemed an employee to have absconded if he or she was absent from work for longer than three days. The commissioner held that, notwithstanding the provisions of the disciplinary code, absence from work for longer than three days does not necessarily mean that an employee has absconded, or that the termination of his contract does not constitute a dismissal. To prove abscondment, the employee must be proved to have formed the intention of not resuming work. Since the respondent was unable to prove that the employee had not telephoned his manager, as the applicant claimed, his evidence to that effect had to be accepted. The commissioner accordingly found that the applicant had discharged the onus of proving that he had been dismissed. Since the respondent had relied solely on the claim that the applicant had not been dismissed, it followed that the dismissal was substantively and procedurally unfair. The applicant was awarded compensation equal to seven months’ salary. Employees will often challenge the existence of rules in order to bypass them. It is for the employer to prove that a rule exists and that the employee is aware of it or that it could reasonably expect the employee to be aware of it. In FAWU obo Mothoung v Supply Chain Services (Pty) Ltd[10], the applicant was dismissed on 22 May 2008 after allegations that he had been in breach of rules regarding attendance at work. According to the rules of the respondent, any arrival at work after 7am would be deemed to be in breach of the rules. The appropriateness of the sanction was challenged as the applicant claimed that there had been no breach of the rules of the respondent even though he had arrived at work at 7:08am and 7:37am on the two days in question. Evidence revealed that the applicant and a witness had attempted to twist the rules of the respondent regarding working hours and the grace period of the respondent. The dismissal of the applicant was substantively fair. And the case was dismissed and there was no order as to costs. Article published by Johanette Rheeder - jrattorneys@yebo.co.za ________________________________________ |
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