AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC)

The employee had been dismissed for unsatisfactory timekeeping in terms of the Employer’s disciplinary code because of his frequent absences through illness. The Industrial Court held that the Employer had in fact not dismissed the employee for poor timekeeping but for the misconduct of abuse of sick leave which it was not entitled to do because the employee had been genuinely ill on each occasion. The Employer had accepted the medical certificates produced by the employee. The court also found that the employee’s dismissal had been procedurally unfair because the employer had failed to consult him properly. The employee was reinstated.

The Labour Appeal Court held that the employer had adopted an ambivalent attitude towards the employee’s conduct. On the one hand, by relying on its rule relating to poor timekeeping, it seemed to accept that the employee was genuinely ill. On the other hand, by describing the employee’s conduct as ‘abuse of sick leave’, it was implying that the employee was malingering. In the former case, the grounds for dismissal would be incapacity, while in the latter case, the grounds for dismissal would be misconduct. The court found further that the employer, having accepted the authenticity of the medical certificates, was entitled to rely only on incapacity.

The court held that factors to consider when dismissing for incapacity include the nature of the incapacity; the cause of the incapacity; the likelihood of recovery, improvement or recurrence; the period of absence and its effect on the employer’s operations, the effect of the employee’s disability on the other employees and the employee’s work record and length of service.

The court found that, having regard to the cumulative effect of the following facts, the dismissal of the employee was substantively fair: (1) The sick leave taken by the employee had been way in excess of the number of paid days of sick leave to which he was entitled every year. (2) The employee’s ill health had not been caused by his working conditions. (3) The employee was an unreliable employee because the employer could not anticipate when he would arrive for work or be off sick, and this affected productivity and placed an unfair burden on the other employees. (4) The employee had a poor work record.

Regarding procedural fairness, the court held that there should be a distinction between dismissal for persistent but intermittent absence for ill health and dismissal for prolonged absence owing to long-term illness. In the case of persistent but intermittent absence the use of formal medical investigation and inquiries into the genuineness of the illness are not as useful a procedure for the employer as one which helps it determine whether in the circumstances of the employment the employee’s record of absence constitutes sufficient grounds for dismissal. Even if the absence is due to genuine medical reasons it may still be regarded as sufficiently incompatible with the needs of the employer. In effect, persistent but intermittent absence for ill health should be treated as analogous to a disciplinary matter capable of being regarded as a dismissal for misconduct.

The court therefore held in this instance that the procedure followed by the Employer was fair as it had given the employee warnings to improve his attendance at work; it had given him the opportunity to make representations; it had investigated his claim that his working conditions were the cause of his illness and found this claim had no substance; and, finally when there was no adequate improvement in the employee’s attendance record, it had been justified in treating the persistent absences as a sufficient reason for dismissing him.