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DISMISSAL FOR ABSENTEEISM DUE TO HIV/AIDS
Dismissing an employee for absenteeism can be problematic when it appears that the actual reason for the absence was a chronic medical condition. This is so because different procedures apply in the case of dismissal for incapacity than for those that apply in the case of misconduct. But what if the employee is not forthcoming with the reasons for his or her absence?
Problems with absenteeism are prevalent in most workplaces. This is exacerbated by the impact of HIV and AIDS. When an employee is absent the underlying reason could be misconduct or incapacity. There are different types of incapacity (i.e. poor work performance and medical incapacity), each with their own set of procedural requirements. It could become a pretty confused affair. The sensitivity about confidentiality surrounding the medical condition of an employee does also not contribute to solving the problem.
The difficulties that an employer might face in these situations were illustrated in a recent arbitration award of NUMSA obo Rewu and Borbet SA (Pty) Ltd. The company had introduced a “Sick Absence Control Procedure” due to problems experienced with absenteeism. The trade union had agreed to this procedure. The procedure involved taking the employee through various phases. If absenteeism reached a certain level, it was regarded as a failure by the employee to meet the performance standard set by the company and the employee’s services could be terminated.
On the evidence, the employee had taken 52 days sick leave over a period of two years. As the employee had been taken through all the Sick Absence Control Procedures, the presiding commissioner found that the level of absenteeism was at an unacceptable level. The commissioner acknowledged the principle that it would be unfair to expect employers to wait until employees have exhausted their sick leave entitlement before embarking on procedures that could lead to the termination of employment due to incapacity. The commissioner found that the employee had failed to meet a reasonable performance standard set by the company despite having been afforded adequate opportunity to improve his attendance record.
The problem for the company in this case, however, was that the Sick Absence Control Procedure did not apply to incidents of absence due to chronic illness. It was established at the arbitration hearing that the employee’s absences were by and large due to ill health caused by his HIV positive status.
The company had not taken this into account, apparently because the employee’s HIV positive status had not emerged during the process that led to his dismissal. The company’s position was that it was the employee’s right not to divulge the type of illness he was suffering from.
Having found that the employee had in fact suffered from chronic condition, the arbitrator did not have any sympathy for the employer’s position. The company had not investigated the degree and nature of the employee’s alleged incapacity, nor had it considered any alternatives short of dismissing the employee as required by the relevant Code of Good Practice in respect of dismissal for incapacity due to ill heath or injury. He concluded that an incorrect procedure had been followed and that the dismissal had been unfair. The employee was reinstated with back pay.
This case highlights the dilemma that an employer faces in situations of medical incapacity, particularly where the underlying cause is HIV/AIDS. How does one properly investigate the causes for incapacity if there is so much sensitivity about the disclosure of an employee’s HIV status?
However, the lesson to be learnt from this case is that there is no short cut for dismissing an employee. Even where there is an agreed procedure to curb absenteeism, the employer has to consider whether that procedure is appropriate in the circumstances. The fact that an employee does not have to reveal his/her HIV status does not relieve the employer from making an attempt to investigate the degree and nature of the employee’s alleged incapacity and to seek alternatives to dismissal.
For a general guide on how to deal with HIV/AIDS in the workplace, employers are advised to study the Code of Good Practice: Key Aspects of HIV/AIDS and Employment issued by the Minister of Labour.
Written by Jan Truter of www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or info@labourwise.co.za