Managing work attendance and productivity

Transcription

1 making the law work for you! 2008 Managing work attendance and productivity

2 International Labour Organisation Article 4 of the Termination of Employment Convention, 158 of 1982 provides that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.

3 Constitution of the Republic of South Africa Section 23(1) provides: That everyone has the right to fair labour practices. This provision is operationalised and carried through in both the Labour Relations Act and the Basic Conditions of Employment.

4 The Labour Relations Act ( LRA ) (as amended) The LRA regulates the relationship between employees and employers and protects the employees against arbitrary dismissals. Section 188 provides inter alia that a dismissal that is not automatically unfair, is unfair if the employer fails to prove: (a) (b) that the reason for dismissal is a fair reason: (i) related to the employer s conduct or capacity; (ii) based on the employer s operational requirements; and that the dismissal was effected in accordance with a fair procedure.

5 The Basic Conditions of Employment Act, 75 of 1997 This Act sets out the minimum employment standards to which every employee is entitled. It sets out amongst others the maximum working hours and the minimum number of days of sick leave every employee is entitled to.

6 Common law At common law an employee is required to be at work; to obey all lawful and reasonable instructions of the employer and not to work in conflict with the interest of the employer.

7 Absenteeism Absenteeism would be any failure by an employee to report for and remain at work as scheduled. This is underlined by the fact that the employment contract requires the employee to be at work in order to fulfil the role for which s/he was employed. Strictly speaking, any failure to fulfil the requirements of the contractual role, constitutes a breach of that contract.

8 Absenteeism (continued) Du Plessis, Visser and Fourie in 2003 estimated that 4.5% of the workforce are absent any given day in South Africa and that in certain corporations the figure was as high as 18%. Occupational Care in South Africa reveal that South African corporates are losing millions of rands a year due to absenteeism in the workplace. The main problem is that many employees believe sick leave is a benefit like annual leave and that they are entitled to take it, irrespective of their health conditions.

9 The Code of Good Practice: Dismissal =This code provides guidelines for the termination of employment for reasons related to conduct and capacity. =Items 10 and 11 provide guidelines for termination of employment for reasons related to incapacity : Ill-health or injury.

10 The Code of Good Practice Item 10 of the Code of Good Practice Clause 10(1) requires a distinction to be drawn between temporary and permanent incapacity. In the case of temporary incapacity an employer is obliged to perform certain investigations. These involve the assessment of the extent of the incapacity or injury and alternatives short of dismissal which may be considered if that person is to be absent for a time from their job. These include the period of absence, the seriousness of the illness or injury, and the possibility of securing a temporary replacement for the ill or injured employee.

11 The Code of Good Practice (continued) Item 11 provides: Any person determining whether a dismissal arising from ill-health or injury is unfair should consider- (a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable - (i) the extent to which the employee is able to perform the work;

12 The Code of Good Practice (continued) (ii) the extent to which the employee s work circumstances might be adapted to accommodate disability, or where this is not possible, the extent to which the employee s duties might be adapted; and (iii) the availability of any suitable alternative work.

13 Case law National Union of Mine Workers and Another v Libanon Gold Mining Company Limited [1994] 15 ILJ 484 LAC. An employee who had duties that required him to work underground from time to time was certified by the Respondent s medical advisor to be unfit to work underground. The court was of the view that the correctness or otherwise of the Respondent s doctor s professional advice was not a matter upon which a court acting in terms of LRA, could or ought to adjudicate. The court s function was to determine whether an unfair labour practice had been committed. In this case the Applicant argued in the alternative that the Respondent ought not have acted upon the advice of the Respondent s medical advisor. The court said that the Respondent was not obliged to assume a risk which was not of its choosing.

14 Case law National Union of Mine Workers and Another v Libanon Gold Mining Company Limited [1994] 15 ILJ 484 LAC. The Respondent bore responsibility for the risks which were inherent in work of this nature and it would be untenable if its freedom to avoid assuming a particular risk were to be curtailed. The court said that while the employer may not be obliged to return an employee who was not productive, fairness requires that a proper assessment be made of whether the situation has been reached before the employer resorts to dismissal. The court went further and said: A fair employer will ensure that the employee concerned, assisted if need be by his trade union, will be kept informed and will properly be consulted in the course of making this assessment.

15 Case law Hendriks v McIntyre & General Insurance Company of S.A. Ltd [1994] 15 ILJ 304 (LAC). The Court said that an employer may dismiss an employee for his incapacity to perform his job where such incapacity is due to sustained absence from work because of general ill health, provided the employer follows a fair procedure prior to dismissal.

16 Case law Wylie and Standard Executors & Trustees (2006) 27 ILJ 2210 (CCMA) The Applicant, a trust officer employed by the Respondent, was diagnosed with multiple sclerosis, a degenerative neurological disorder. When she could not perform to the required standard due to her illness, she was transferred to the estates division. When she could not manage the requisite number, she applied to be medically boarded. When her application was turned down by the assurance company, she was terminated with notice.

17 Case law (continued) Wylie and Standard Executors & Trustees (2006) 27 ILJ 2210 (CCMA) The Commissioner looked at the definition of people with disabilities in section 1 of the Employment Equity Act and read it together with the definition of physical impairment in item 5 of Disability Code and concluded that the applicant s condition amounted to disability. He then invoked item 6 which deals with the reasonable accommodation of people with disabilities and concluded that the respondent failed to accommodate a disabled person and found the dismissal substantively unfair and awarded compensation.

18 Case law Standard Bank v D Ferreira (Case No. JR 662/06 Judgment issued 25/12/07) After the CCMA had found the dismissal of the 3rd respondent unfair, the applicant applied to the Labour Court to have the award reviewed and set aside. After listening to argument at Court, the Judge instructed both counsel to file extra heads of argument dealing specifically with reasonable accommodation of people with disabilities. The Court found, inter alia, that the applicant had acted unfairly in that it could not prove that the accommodation of the employee would amount or lead to undue hardships. The Court in this case followed the Wylie route of not differentiating between incapacity and disability and in fact supplanted the requirements for disability in an incapacity enquiry.

19 Case law Trident Steel Limited v Metal Industries Bargaining Council (Case number DA14/05) unreported The LAC said: In cases of permanent incapacity, the employer should ascertain the possibility of alternative employment, or adapting the duties or work circumstances of the employer to accommodate the employee s disability.. At paragraph 22, the Court said: If the employer is shown to have acted reasonably to try and accommodate the employee, it can be said that it has discharged its obligation.

20 Case law Hoffman v SAA [2000] 12 BLLR 1365 (CC) The Applicant applied for a role of cabin attendant and was found to be suitable after an interview. Results of his medical however, revealed that he was HIV positive and was declared unsuitable on that basis. The High Court dismissed his application to declare this unconstitutional. On appeal to the Constitutional Court, the CC found that the High Court had erred and held that HIV/Aids is a progressive disease of the immune system that goes through identifiable stages. The Court held further that: Any discrimination against HIV people is a fresh instance of stigmitisation which impaired their dignity. The Company was found to have committed an unfair labour practice and was ordered to employ the Applicant - effective from the date of judgment.

21 Case law MTN Service Provider (Pty) Ltd v Matji NO & Others (2007) 28 ILJ 2279 (LC) Employee had been dismissed following an incapacity hearing. It appeared that the employee had been absent for 202 days in three years. On her return to work after several months absence, she was suspended pending investigation into her ability to render the services she had been employed to render. Her dismissal was found to be substantively and procedurally unfair by the CCMA.

22 Case law MTN Service Provider (Pty) Ltd v Matji NO & Others (2007) 28 ILJ 2279 (LC) On review, the Labour Court held that there was no evidence led in relation to her ability to perform her work when she returned. The Court held that it appeared that the dismissal was not based on incapacity but on long and persistent periods of absence from work due to ill-health. This is not the test in incapacity hearings. The test being whether the employee was capable of rendering services to the employer at the time of the termination of her employment.

23 Case law Mthethwa and Capital Caterers (2007) 28 ILJ 1859 (CCMA) The Applicant, a catering manager was dismissed after being absent for about two weeks. After which he had been hospitalised for a further two weeks and on his return presented a medical certificate. His employer advised him that he had dismissed him due to his absence. The CCMA held that employees cannot be guilty of absenteeism when they are not contractually obliged to render services, as when they are on authorised sick leave unless they abuse the sick leave. The employee was reinstated with retrospective effect.

24 Case law Mgobhozi v Naidoo NO & Others [2006] 3 BLLR 242 (LAC) The Labour Appeal Court held that the mere submission of a medical certificate is not conclusive evidence regarding absence. The certificate in the absence of additional statement by the medical doctor, will be regarded as a form of hearsay evidence within the context of the law of evidence. The employer is legally justified to scrutinise the wide and vague symptoms/reasons in the medical certificate.

25 Case law Coca Cola Fortune SA (Pty) Ltd v CCMA & Others (unreported case No. JR 2166/04) delivered on 16/11/07) The third respondent was injured in a car accident in September He was a very good worker before his accident. He went back to work during January 2002 until August During the period September 2001 to June 2003, he underwent six operations. He was not permanently incapacitated. According to his medical report he needed one further operation to recuperate. The commissioner said that to the extent that the medical reports showed that the first respondent would recover, it was important for the applicant to continue to assist its employee while he was recovering. The dismissal was deemed to be unfair.

26 making the law work for you! Managing work attendance and productivity Thank you! 2008