Articles

Absenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Looking for a quick fix when reaching the point where frustration levels become intolerabl,e is not the answer.     

INTRODUCTION

Absenteeism and poor performance are two of the most unmanaged areas in the workplace – which can be due to fear of conflict, procrastination, lack of control and in many instances, lack of knowledge.

We are regularly contacted by employers who have reached a point where they have no tolerance left for problems with an employee in this regard and then want a quick solution for ending the employment relationship, usually in the form of a disciplinary hearing on a charge of “sick leave abuse” or “poor performance”, as mentioned in their disciplinary code.

The mere fact that “sick leave abuse” and “poor performance” may be framed as offences in an employer’s disciplinary code, does however not automatically mean that employees could therefore always be disciplined when taking frequent (and suspiciously timed) sick days or whenever their performance is not up to standard.  The employer must be able to prove that the employee’s lack of performance or frequent absences actually constitute misconduct on the part of the employee. If this is not the case, then a quick disciplinary route will not be an option and could give rise to an unfair dismissal claim.  

MISCONDUCT VS INCAPACITY

In terms of the Labour Relations Act, an employee can be dismissed for reasons relating to his/her conduct, capacity, or for the employer’s operational requirements. Such dismissals must be for a fair reason and a fair procedure must have been followed. In Schedule 8 of the Act, an explicit distinction is made between the substantive and procedural requirements for misconduct- and incapacity dismissals respectively.

Misconduct refers to situations where an employee is capable of meeting workplace standards or rules, but fails to do so without an acceptable reason. In other words, the employee breaks a rule or standard in circumstances where he or she could have complied, but either refused or failed to do so. In this case, fault / blameworthiness on the part of the employee is implied and a disciplinary process is therefore appropriate.

Incapacity refers to an employee’s inability to meet and adhere to acceptable and reasonable workplace standards – in this scenario, the employer’s performance- or attendance standards. If an employee is unable / does not have the capacity to meet these standards due to factors out of his/her control, it cannot be misconduct and disciplinary procedures are not applicable. Instead, a counselling process addressing the problematic issues (e.g. lack of skills/competence, or ill health) is appropriate. This process is usually a longer process that could, subject to the requirements as set out in Schedule 8, also lead to dismissal of the employee, but will be regarded as a ‘no fault’ dismissal.

SICK LEAVE ABUSE

Excessive sick leave absenteeism creates numerous problems for managers and fellow employees and also evokes emotional responses - employers believing the sick leave is consistently abused, whereas employees believe that they have a right to utilise their full sick leave entitlement. I do not propose to offer a solution to this ever-present dilemma, however it is important to understand the different options available to employers to manage this.

Employees have a common law duty to render services during their contracted working hours. The exception to this duty is when the employee can show that he/she has a valid reason to be absent. The onus is on the employee to prove this. Illness is however a fact of life and employees will get ill. In practice, most employers would therefore simply accept sick notes on face value; or if a sick note does not comply with the legal requirements for granting paid sick leave, simply make it unpaid leave. If the employee takes frequent sick leave (even if they produce a sick certificate every time) and the employer does not challenge or investigate this, it could be argued that the employer has accepted the reason for the absence on each occasion as valid – and therefore that it cannot be misconduct or abuse.

If the employee however lies about the reason and claims to be ill when this is not the case, this will be a breach of contract (misconduct) that can justify the implementation of disciplinary action, and possible dismissal. Sick notes are not sacrosanct and are essentially hearsay evidence. They can be investigated and either be verified or found to be false. The employee may for example be seen at a party or sporting event while claiming to be ill, which requires an explanation. The doctor who supposedly issued the sick note, may not actually exist. If the employer’s investigation produces evidence of likely misconduct, a disciplinary process is prudent – either on the basis of unauthorised absence or for misrepresentation of information to the employer.

Sick absences (paid or unpaid) that have previously gone unchallenged, cannot become misconduct later on simply because a pattern of frequent sick absences emerges over time. The employer needs more than just a pattern – there will have to be surrounding circumstances to contribute to the likelihood of deception in relation to this pattern, before misconduct may be indicated. The employer needs to present a prima facie case that the employee probably lied about being sick on some of all of the absences and therefore abused his/her sick leave, before the burden passes to the employee to rebut this inference.    

If however such investigations have not been done; or sufficient proof of probable misconduct and fault on the part of the employee is not available, the employer cannot address the frequency of sick absences by way of a disciplinary charge for sick leave abuse. This does not mean that the employer has no recourse to address frequent sick absences and the resultant loss of productivity. An incapacity process relating to ill health can be initiated with such employees, with a view to determine if they have the health capacity to consistently deliver on their contractual obligations. his would require the employee to cooperate with a medical investigation, following the principles in Schedule 8 (items 10 and 11).

This scenario was considered by the Labour Court in General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (2018) 39 ILJ 1316 (LC) (30 January 2018). The court made the following observations:

  • “The need to maintain satisfactory levels of attendance was clearly a capacity that an employee was required to demonstrate to remain employed. The fact remains that in each instance, the source of the alleged incapacity or inability to comply with attendance requirements was ill- health.”
  • Reference was made by the court to AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC) and the Labour Appeal Court’s acceptance that persistent absence from work because of genuine ill-health is a legitimate ground on which to terminate employment, and one that relates to the capacity and not the conduct of the employee. “It seems to us that the company, having accepted the authenticity of the medical certificates, was entitled to rely only on incapacity. It was entitled to dismiss the applicant… For his incapacity to perform his job with such incapacity [was] due to persistent absence from work because of genuine ill-health.”
  • The court also referred to Hendricks v Mercantile General Reinsurance Company (1992) 15ILJ 34 (LAC) as authority for the proposition that substantive fairness in such circumstances requires an assessment of whether the employer can fairly be expected to continue the employment relationship given the nature of the incapacity, its cause, the prospect of recovery, improvement or recurrence, the period of absence and its effect on the employer’s operations and on other employees, and the employee’s work record and length of service.

 

In practice therefore, the following could apply where there are frequent sick absences and an incapacity process is utilised:

  • The frequently absent employee is genuinely suffering from ill health and could potentially be dismissed for incapacity;
  • The medical investigation shows that the employee has no real health problems, in which case the employer will know to scrutinise and investigate each sick absence in future, to determine if the employee was really sick or should be charged with misconduct;

 

The employee will in any event realise at this point that his/her job may be on the line either way, if the frequent sick absences continue.

A tip from employers who have been able to manage their absenteeism better than most, is to introduce a policy that any employee who has been absent for health reasons, may not start their duties upon their return to work, before they have sat down with their manager for a ‘welcome back’ interview - regardless of the duration of the absence or whether they submit a sick note or not. During this interview, the manager can confirm that the employee is well enough to resume work; take note of any medication that may affect their performance; and scrutinise any sick note properly in the presence of the employee. Even if the nature of the ‘medical condition’ is not disclosed, the authenticity of the sick note and the veracity of its contents could be investigated.

POOR PERFORMANCE

Poor work performance of an employee is another aspect that can cause confusion and which requires a clear understanding in order to manage appropriately. An employer is entitled to determine rules and reasonable performance standards for its employees and can expect them to comply with these. All employees are also subject to the common law duty to always exercise the required care in relation to their employer’s property and its services. Whenever an employee does not meet the required performance standards, the employer is entitled to take steps to address this.

An employer may be inclined, due to irritation at the non-delivery on the part of an employee and the losses this may cause, to ‘punish’ the employee by launching disciplinary proceedings. However, once again it is important to make the distinction between misconduct and incapacity arising from poor work performance from the start, because dismissal based on incapacity requires a very different procedure compared to the disciplinary procedure associated with misconduct. Choosing the wrong process can have far-reaching consequences, as will be discussed below.

One should not get stuck on the specific phrase ‘poor performance’ as being only indicative of incapacity (as per Schedule 8) – the term is often used in a generic sense, and the term is also used by employers in their disciplinary code. The focus of the employer must be on establishing the real reasons for the sub-standard performance and then decide on the appropriate process to address these.

  • If the under-performance is the result of the employee’s inability to perform adequately (lack of skills, incompetence), it amounts to incapacity. Items 8 and 9 of Schedule 8 will be applicable.
  • Misconduct involves an element of blameworthiness on the employee’s part – i.e. the employee is able to perform at the required standard but fails to do so, usually through negligence. This calls for a disciplinary process.

 

Misconduct in this context is often formulated and presented to the employee as a ‘negligence’ charge. Strictly speaking, negligence is a state of mind and the allegations should probably rather refer to the actions or omissions on the part of the employee that resulted in the unsatisfactory performance. The basis for the employee’s culpability is however not the act or omission itself, but rather the lack of care and/or diligence that accompanied the act or omission. Employees owe a duty of care to their employers and the failure of an employee to meet the required standard of care that would be exercised by the reasonable person, constitutes a breach of that duty. If a reasonable person in the same position as the employee would have foreseen the harm resulting from his/her acts or omissions, and would have taken steps to guard against that harm, but the employee failed to do so, the employee was negligent in the performance of his/her duties. (See Ndlovu / Sefako Makgatho Health Science University (SMU) [2018] 8 BALR 907 (CCMA))

The distinction between the two types of poor work performance is however not always clear cut, which has given rise to interesting case law – as per the Labour Court in Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC:  “The dismissal of an employee on account of his/her culpable poor work performance (misconduct) at times overlaps with his/her dismissal on the basis of his/her inability to do the work (incapacity).”

In the recent case of Unitrans Supply Chain Solutions (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) and Others (2018) 39 ILJ 2573 (LC) (15 August 2018), the employee was dismissed for dishonesty and deliberately falsifying payroll information which caused a shop steward to receive remuneration he was not entitled to.  The arbitrator found that at worst the employee did not carry out his duties as he should have (i.e. negligence, not dishonesty); and that in any event the employer should have treated the matter as a case of poor performance (incapacity) rather than misconduct involving dishonesty. Reinstatement was ordered.

The Labour Court held a different view and determined as follows:

  • “An arbitrator deciding the fairness of a dismissal must assess the fairness thereof in relation to the reason given by the employer. If the employer cannot justify the dismissal on that basis, it will fail. What an arbitrator should be very wary of is to consider whether the employer ought to have dealt with the employee’s conduct on a completely different basis and then evaluate the fairness of the dismissal with reference to the test applicable to that type of dismissal, when that was not the reason advanced by the employer for the dismissal. If the arbitrator is satisfied incompetence rather than misconduct was the explanation for the employee’s behaviour, then the employer will not succeed in justifying the fairness of the dismissal based on misconduct.”
  • “Secondly, in a case of misconduct when the employee does not raise incapacity of some kind as a defence, it is improper of an arbitrator to make findings on this basis when the employee themselves had not raised it. That is tantamount to making out a case for a party and gives rise to an inference of possible bias on the part of the arbitrator ............. It led the arbitrator to take his ‘eye off the ball’ so to speak, and to focus on a defence for Juries of his own making, instead of dispassionately assessing the probabilities whether Juries’ conduct most probably reflected negligence rather than wilful misrepresentation of hours worked......... It was not for the arbitrator to speculate about the outcome of a potential defence that was never even advanced at the arbitration.”
  • “There simply was insufficient evidence for the arbitrator to reach the conclusion that the overpayments were merely a result of negligence on Juries’ part, when there was significant evidence that cried out for a coherent explanation from Juries as to how it could simply have been an error rather than deliberate. Thus, while the arbitrator was willing to speculate about errors that might have been made, the arbitrator did not consider evidence of ‘errors’ made in Coetzee’s favour, for which no explanation was provided ........... By construing the issue as being one of incapacity, the arbitrator was able to skirt the obvious deficiencies in Juries’ defence that his conduct was not intentional.”

 

It is therefore important for employers to look carefully at whether performance issues are caused by ‘fault’ on the employee’s part or whether competencies are lacking which could be addressed by way of reasonable guidance. If the employee’s sub-standard performance is due to incompetence on his/her part, the employer will have to invest the necessary time in performance management and an incapacity counselling process, rather than taking a disciplinary shortcut.

Having said that, it is trite that the normal process requirements for a dismissal for poor work performance (incapacity) should not be as strictly applied in the case of a manager or senior employee whose knowledge and experience qualify him/her to judge for him/herself whether he/she is meeting the standards set by the employer; or where the degree of professional skill required is so high and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in accordance with those high standards is enough to justify dismissal. (See Somyo v Ross Poultry Breeders (Pty) Ltd (JA9/97) [1997] ZALAC 3)

CONCLUSION

It is clear that employers need to actively manage sick absenteeism and poor performance in respect of their employees – and to start the applicable processes as soon as a problem is identified. Procrastinating and hoping for improvement will achieve nothing and only increase frustration levels of management and fellow employees. If the problem is given attention from the start and the employee is put on terms, there is often a good chance that it might be rectified. At the point where the situation has already become intolerable and the employment relationship has deteriorated, it is difficult to take a few steps back and commit to a constructive process.

© Judith Griessel

Griessel Consulting (Pty) Ltd.

1 November 2018