Just before she has to attend a disciplinary hearing, your employee submits a medical certificate stating that she is unable to attend the hearing because of some undisclosed illness. What should you do?
If the employee’s illness is genuine, failing to postpone the hearing will probably be regarded as procedurally unfair. Illness can be regarded as genuine if the employee presents a certificate from a registered medical practitioner stating that according to the practitioner’s own assessment the employee was too ill or injured to work for the whole period of absence. The certificate must be signed and also indicate the date and time of the visit. In these circumstances you would be well advised to postpone the hearing to a date after the return date indicated on the certificate, but then state in the notice that further postponements will not be allowed and the hearing might continue in the employee’s absence if she fails to appear.
The following is an example of a paragraph that may be included in the follow-up disciplinary notice: “Please note that the hearing will continue in your absence if you fail to attend. In the event of you being unable to attend because of alleged illness, you must inform your manager prior to the date of the hearing of this and explain the full circumstances. We reserve the right to continue with the hearing if we believe that your absence is merely an attempt to avoid the hearing. If we do allow a postponement, you must upon your return provide a full medical report from a registered medical practitioner (not from a nurse, traditional healer or clinic) stating that the doctor had been informed of the fact that you have to attend a hearing but that you are, in the doctor’s own opinion, too sick to attend. ’
Should she again be absent, again supported by a certificate, you should use your discretion whether or not to allow a further postponement depending on whether you are persuaded that the illness is genuine. If you have reason to believe that the employee is abusing sick leave (e.g. as appears from the employee’s attendance record, or the employee’s failure to provide a legitimate medical certificate), you may either continue with the hearing in the employee’s absence or (we would advise) allow at least one final postponement.
It might be that there are reasons why you cannot delay the hearing any longer, e.g. because the outcome of the hearing is important to minimise risk, or to be able to take action against others involved. In this event we would advise that you record the evidence and then provide a printed copy to the employee and require her to provide a written response by a given date. Consider the evidence in the light of her response and then make your decision about the employee’s guilt or innocence of the original allegations. If guilty, allow the employee an opportunity to provide mitigating factors in writing. You should also inform the employee of her right to appeal the decision (if your organisation provides an opportunity to appeal).
If In Solidarity obo Van Vuuren v Volkswagen the employee did not have an opportunity to present evidence in mitigation after having been found guilty of serious misconduct, as she was allegedly sick at the time. It was held that in the circumstances of the case it was probable that the employee used her alleged illness merely to avoid attending the remainder of the hearing. The employer was found to have been very accommodating to the employee in attempting to obtain mitigating factors from her but had reached the point where it could not reasonable be expected to wait any longer. The commissioner was also satisfied that even without having the employee’s mitigating factors available to consider, its decision to terminate the employee’s services was substantively fair.
In summary, we would advise that employers err on the side of caution and postpone the hearing at least once if the employee claims to be too ill to attend the hearing. If you have evidence supporting your belief that the employee might be abusing sick leave, however, you may be able to continue with the hearing in the employee’s absence. Nevertheless, we would advise that you inform the employee in writing about the reasons why you continued in her absence and allow her an opportunity to convince you that her absence was not deliberate, e.g. by submitting an acceptable medical certificate or report.
Barney Jordaan of Maserumule Consulting, Learning & Organisational Growth for www.labourwise.co.za
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