By Jacques van Wyk, Director, Labour and Employment Law at Werksmans
Attorneys
If an employee is genuinely sick an employer must postpone the disciplinary enquiry.
This is because it is one of the essential prerequisites of fairness and equity that the
employee be afforded an opportunity to state his or her case in response to the
allegations brought against him or her.
However, when it is clear that the employee is utilizing sick leave as a means of
stalling or otherwise hindering the disciplinary process, the employer is entitled to
question the employee?s bona fides and act accordingly, even proceed with the
enquiry in absentia.
In the case of Solidarity obo Van Vuuren v Volkswagen SA[2003] 10 BALR 1191
(CCMA) the employee challenged the procedural fairness of the disciplinary process
because the outcome of her disciplinary enquiry was given in her absence while she
was on sick leave.
The disciplinary enquiry also proceeded without the employee leading evidence in
mitigation of sentence. Having regard to the facts, the court held that it was
probable that the employee had applied for sick leave to delay the disciplinary
process.
The court found that the employer had been patient over an extended period
while making numerous reasonable requests that the applicant submit mitigating
factors and provide a medical reason as to why she was not able to adhere to such
requests.
The employee had failed to respond to the employer?s requests to present
mitigating factors. The outcome of the disciplinary enquiry was also assessed by the
court and it was held that, owing to mitigating factors being considered in the
employee?s absence, the decision to dismiss the employee was procedurally fair.
Employees who are genuinely ill can have their disciplinary enquiry postponed in
order to allow them an opportunity to present their case. However, the courts will
consider what is fair to both parties.
If the employer can provide facts showing that it is likely that the employee is
abusing his or her sick leave, then the employer may be entitled to proceed with the
disciplinary enquiry in the absence of the employee. In order to avoid risk, the
employer must have clear evidence in this regard.
