Employees often fall ill and some illnesses can be critical which may lead to the employee being absent from work for excessive periods of time, sometimes for months on end. During this period what should the employer do and what should the employer look out for.
The case below gives us guidance on what the impacts are when employers do not follow the prescripts of the Code of Good Practice, Schedule 8.
In Nyeleka v ERC Holdings (Pty) Ltd – (2020) 29 CCMA the employee was ill and was hospitalized for TB. He submitted sick notes from 3 July 2019 until 04 November 2019. Upon returning to work, the Area Manager informed him that his contract had been terminated due to the excessive period of absence associated with his illness. The employee referred an unfair dismissal dispute. The Medical report showed that he had TB and had to be negative before reporting back to work. The Manager’s response was that the employee needed a letter from the doctor stating that he was fit for work, this despite the letter under “remarks” had indicated that he was fit but needed monthly follow ups. The Manager then on the 6th of November stated that the contract was terminated because the employee was absent for too long.
The Commissioner noted that this was the first time the employee had fallen ill while working for the company and that his absence of 4 months was not long for an employee with TB, a temporary replacement could have been found. The employee was afforded no chance to make representations prior to his termination. The dismissal was, accordingly, substantively and procedurally found to be unfair and the employee was re-instated with retrospective effect.
Conclusion:
In this case we learn that 4 months of absence due to an illness such as TB can be justified. Medical proof and reports are obviously a requirement in order to assist the employer to make an informed decision in the processes that it needs to follow as per the Code of Good Practice, Schedule 8.
Absenteeism on the grounds of ill health may be temporary as in the above-mentioned case. The employer should have followed due process and investigated the extent of the illness. Furthermore, whether the employee is likely to be absent for a time that is unreasonably long in the circumstances, and alternative means to see how the employee or condition could be accommodated, prior to considering termination.
When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness and the possibility of securing a temporary replacement for the ill employee until he recovers and declared fit for work gain. In cases of permanent incapacity, the employer should attempt to accommodate the employee and see if there are no alternative positions that the employee may fulfil prior to termination. In cases whereby, incapacity is directly linked to an injury on duty the employer has an increased responsibility to assist the employee and investigate alternatives to accommodate the employee prior to termination.