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STRESS- RELATED ABSENTEEISM NOT ALWAYS VALID REASON FOR DISMISSAL
Stress can render an employee incapable of doing the job. It can also cause extended or regular absenteeism. Labour law recognises an employer’s right to dismiss an employee that is incapable of doing the job due to medical incapacity, provided the correct procedures are followed. Where the stress is work-related, however, extra care needs to be taken before considering dismissal.
This issue arose in the CCMA matter Bennett and Mondipak. The commissioner, in terms of the provisions of the Code of Good Practice: Dismissal and the Code on Managing Disability in the Workplace held that the employer is obliged to investigate the causes of the stress in the first instance
The employer should try to determine whether the stress level experienced by the employee is normally associated with the type of job performed by the employee. If it is and the employee is unlikely to adjust to the requirements of the position, he or she faces dismissal for reasons of incapacity after the employer has complied with the requirements of a fair procedure. This will involve investigating the availability of alternative, less stressful jobs even if these might be at a lower level and remuneration package. However, if it is found that the stress is caused by extraneous factors beyond the employee’s control but within the managerial authority of the employer, the employer is obliged make reasonable efforts to remove these factors before concluding that the employee is incapable of performing the work.
In Bennett’s case the employee, who had moved through the ranks from shop steward to HR clerk, had a stress-related breakdown and was consequently absent from work for extended periods.. Reports from two psychologists, one appointed by the employer, stated that the stress-inducing factors were directly related to the lack of cooperation from line managers to supply information to him to execute his function as time and attendance record keeper. His continuous requests for cooperation generally fell on deaf ears. This eventually resulted in Bennett being unable to do his job as required and he suffered a breakdown.
His employer held an inquiry and concluded that Bennett was incapable of meeting the requirements of his job. Another person was appointed to the position on a temporary basis while Bennett was on sick leave. When the employer realised that the new appointee had no difficulty in executing the function of time and attendance record keeping, he concluded that the problem was vested in Bennett himself. He offered him alternative employment but Bennett rejected this, insisting that the employer should keep him in his position but address the extraneous factors causing his stress.
The employer was unsympathetic to this argument and dismissed him. During arbitration, it was held that the employer had come to the conclusion too soon that the employee was incapable of doing his job. He should have investigated the extraneous causes of the problem in the first instance and dealt with them. The arbitrator held that the fact that the replacement was coping with the job was no reason to conclude that Bennett was incapable of doing the job. Bennet was reinstated.
Recent case law suggests that, provided an employee is able to establish a causal connection between his breakdown and his work situation, a claim for compensation in terms of COIDA would also be available to a person in Bennet’s position.
Written by Barney Jordaan of Jordaan · Stander for 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