AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC) 1995 ILJ p1505

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LABOUR APPEAL COURT (TRANSVAAL DIVISION)
August 21, 1995; August 23, 1995
Before MYBURGH J, sitting with PRETORIUS and DU PLESSIS, Assessors Judgment

E MYBURGH J:

The respondent, Mr Shadrack Mambalu, was employed by the appellant, AECI Explosives Ltd (the company) as a production house assistant from 4 December 1987 to 12 December 1991. Mr Mambalu’s job was to load bags of a product known as Anfix, which consisted mainly of ammonium nitrate, at the company’s Zomerveld factory.

He was dismissed in terms of rule 14 of ‘the rules of guidance for safety of AECI employees’, which provides:

‘An employee frequently absent through sickness is liable to have his services terminated on the grounds of unsatisfactory timekeeping.’

He sought a determination in the Industrial Court in terms of s 46(9) of the Labour Relations Act 28 of 1956, that his dismissal constituted an unfair labour practice. (I will refer to Mr Mambalu as the applicant.) He was successful. The Industrial Court made an order that the company was obliged to reinstate him and the company was ordered to pay the applicant R24 046 being the sum of the wages he would have earned from the date of his dismissal until October 1993.

The Industrial Court found that the company had not dismissed the applicant for unsatisfactory timekeeping in terms of rule 14 but rather for ‘the misconduct of being dishonest with his sickness absences and thereby abused his own sick leave’. The court found that the company was not entitled to change its case midstream. It held that the applicant was genuinely ill on each occasion that the applicant took sick leave and that there was therefore no valid reason for his dismissal.

In terms of the applicant’s contract of employment with the company he was entitled to 16 days paid sick leave a year. If he was off sick for more than 16 days, he was entitled to unpaid sick leave on production of a medical certificate. Those rights were subject to rule 14, quoted earlier, which was a term of his contract of employment. While the company relied on the provisions of rule 14, it also referred to the conduct of the applicant as ‘abuse of sick leave’.

It was the practice of the company to allow an employee who was temporarily unable to do his work due to illness to do light duty. In terms of the applicable pension fund rules, if the employee was permanently unable to work due to ill health, he could be declared to be medically unfit, to retire, and to receive a pension.

During the period 2 March 1989 to 21 December 1989 the applicant was off sick on ten occasions, six for influenza, for a total of 26 days. On 4 July the applicant was given a letter by the company in which he was informed that his attitude to attendance at work was unacceptable and if attendance did not improve, further action would be taken. During the month of July, the applicant was counselled for ‘unsatisfactory attendance’ and given an oral warning for ‘leaving workplace without permission’.

During the period 25 January 1990 to 4 November 1990 the applicant was off sick on six occasions, three for influenza, for a total of 16 days. On 1 February of that year the applicant was given a written warning. He was told: ‘If your frequency of sick leave cannot improve you are not suitable for work in this environment.’ He was warned that the company might take further action if an improvement was not seen. During the course of the year the applicant was given two oral warnings and one written warning for absence without leave.

During the period 15 January 1991 to 30 November 1991 the applicant was off 35 days. From January to March he was off sick for ‘shoulder pain’ and ‘shoulder dislocation’. On 3 June the applicant was given a written warning for failing to report for duty on 29 and 30 May. On 4 June the applicant was absent without leave. On 6 and 7 June he was off sick because of influenza. On 13 June a disciplinary enquiry was held in respect of the applicant’s absence without leave on 3 June and abuse of sick leave. In regard to the letter, the company relied on the fact that the applicant was on sick leave on 11 occasions for 37 days during the previous 14 months. On the following day the applicant was issued with a letter of reprimand in respect of each complaint. The applicant was informed that if he did not show improvement in his attendance, the company would be compelled by his failure to respond to corrective action, to take more serious disciplinary action which could result in his dismissal.

For the following three months the applicant did not take sick leave. However, during the period 3 October to 29 November he took sick leave on three occasions for a total of eight days. He was said to have influenza on two of those occasions and a sprained back on one.

The applicant’s superintendent, Mr C F Badenhorst, who also gave evidence in the Industrial Court, laid a complaint against the applicant. He pointed out that on each of those three occasions the applicant took sick leave before the weekend and that 47 days sick leave was taken from February 1990 to November 1991.

The company convened a disciplinary enquiry on 10 December. The charge was ‘abuse of sick leave’. The company adopted the attitude at the enquiry, and later at the trial in the Industrial Court, that it did not ‘look at specific illnesses because the doctor’s decisions could not be questioned’. The company’s concern was abuse of sick leave: the applicant had a tendency to be off sick towards the end of a week.

The applicant’s answer at the enquiry, and at the trial, was a threefold one:

– the fumes or dust of the Anfix caused influenza and the company, in breach of its own rules, failed to provide dust masks for its employees;

– alternatively, physical exertion of packing bags made him sweat and as he moved from hot to cold areas he got influenza;

– he was not given light duty, to which he was entitled.

The last allegation was conceded by the applicant under cross-examination to be incorrect. When he dislocated his shoulder in early 1991, the applicant was booked off and on return to work was given light duty. That was the only time he was entitled to light duty.

The allegation that it was the applicant’s working conditions which caused the influenza were shown to be without substance. At no time prior to his dismissal or at trial, did the applicant, or the trade union to which he belonged, produce any medical or other evidence to substantiate that allegation. The evidence for the company, on the contrary, was that the company’s environmental laboratory personnel regularly tested the factory,

inter alia, for dust. In 1988 it was discovered that Anfix produced too much dust. That problem was addressed by adding a coating of lilamien to the Anfix. That solved the problem. In any event, the dust, which consisted mainly of ammonium nitrate, could not produce lung problems. Accordingly, it was not obligatory for the staff to wear dust masks, nor was it a rule of the company that they should do so, but masks were available if any of the staff wished to wear one.

Miss Houston testified on behalf of the company. She is a registered nurse with a diploma in occupational health nursing. She qualified as a nurse in Scotland in 1970. She is employed at the Zomerveld factory. She discussed the applicant’s frequent illnesses with him. She referred him to doctors to eliminate factors such as an immune deficiency or tuberculosis, but she could not on her own or with the assistance of doctors discover any underlying cause for the influenza. She concluded that individual susceptibility was not a factor. Her evidence in that regard was not challenged by the applicant or the union.

The company’s evidence, which was unchallenged, was that high absenteeism can have an impact on productivity. At the Zomerveld factory, employees work mainly in production teams, and if one employee is not at work that affects the team’s output. High absenteeism can also lead to unsafe working conditions.

The first issue that must be addressed is whether the dismissal of the applicant was substantively fair.

The company adopted an ambivalent attitude towards the applicant’s conduct. On the one hand, by relying on rule 14, which deals with the situation of an employee who is frequently absent through sickness, the company seemed to accept that the applicant was genuinely ill when he alleged he suffered from influenza. Consistent with that attitude, the company did not challenge the opinions expressed in the medical certificates which the applicant produced on each occasion. On the other hand, by describing the applicant’s conduct as abuse of sick leave and by relying on a pattern of sick leave been taken just before a weekend, the company was implying that the applicant 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.

It seems to us that the company, having accepted the authenticity of the medical certficates, was entitled to rely only on incapacity. It was entitled to dismiss the applicant ‘for his incapacity to perform his job where such incapacity [was] due to persistent absence from work because of genuine ill health’ (per Tebbutt J in Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) at 312I-J). The test for substantive fairness was stated by Tebbutt J at 313A-D to be the following:

‘The substantive fairness of dismissal depends on the question whether the employer can fairly be expected to continue the employment relationship bearing in mind the interests of the employee and the employer and the equities of the case. Relevant factors would include inter alia 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.’

We are of the view that, having regard to the cumulative effect of the following facts, the dismissal of the applicant was substantively fair:

1 The applicant was entitled to 16 days paid sick leave a year. During the period March to December 1989, the applicant was off sick on ten occasions, six for influenza, for a total of 26 days. During the period January to November 1990, the applicant was off sick on six occasions, three for influenza, for a total of 16 days. During the period January to November 1991, the applicant was off sick for 35 days, on at least three occasions for influenza.

2 The influenza was not caused by the applicant’s working conditions nor was there any underlying cause for the influenza. Individual susceptibility was not a factor. As the applicant could not be treated, and his working conditions altered to avoid the applicant contracting influenza in the future, it was unlikely that the applicant’s attendance at work would improve.

3 Even if one accepts that each time the applicant averred that he had influenza he in fact had influenza, he was an unreliable employee. The company could not rely on him to arrive at work on any given day. It never knew when he would be off sick. Unlike the case of the employee with a prolonged illness, the company could not anticipate when the applicant would be off sick and so make alternative arrangements. Inevitably it must have meant that productivity was affected and an unfair burden was placed on applicant’s fellow-employees. Someone had to do his work when he was absent on each occasion.

4 The applicant’s work record was bad. In addition to about 90 days that he took off sick in the four years he worked for the company, the applicant was disciplined for sleeping on duty, unsatisfactory work attendance, leaving workplace without permission, and absence without leave on four occasions.

Before dismissing the applicant, the company was obliged to follow fair procedure. In our view, the fair procedure which the company was obliged to adopt was not that set out in Hendrick’s case at 313A-C. Anderman The Law of Unfair Dismissal (2 ed) at 180 states:

‘Where an employee is dismissed for persistent but intermittent absence for ill health then guidelines for a reasonable procedure may be different from those that have been evolved for prolonged absence owing to long term illness.

In the former type of cases the use of formal medical investigation and enquiries into the genuineness of the illness are not as useful a procedure for the employer as one which helps the employer determine whether in the circumstances of the employment the employee’s record of absence constitutes sufficient grounds for dismissal. For even if the absence is due to genuine medical reasons it may still be regarded as sufficiently incompatible with the needs of the organisation.’

In International Sports Co Ltd v Thomson (1980) IRLR 340 (EAT), the employee was dismissed for persistent absenteeism. For the last 18 months of her employment she was absent on average for about 25% of the time. Most of these absences were covered by medical certificates which referred to conditions such as ‘dizzy spells, anxiety and nerves, bronchitis, virus infection, cystitis, althruigra of the left knee and dyspepsia and flatulence’. The last two complaints were the subject of medical certificates covering the employee’s final absence from 11 June 1979 to 10 July 1979. Mr Justice Waterhouse said:

‘What is required, in our judgement, is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it, and secondly, appropriate warnings, after the employee has been given an opportunity to make representations. If then there is no adequate improvement in the attendance record, it is

likely that in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee.’

As Anderman points out at 180-1: ‘In effect this is to suggest that persistent but intermittent absence for ill health, whether or not mixed with absence for other reasons should be treated as analogous to a disciplinary matter capable of being regarded as a dismissal for misconduct.’

There has been a tendency in the development of our labour law to require more or less strict compliance with a procedure according to the category of dismissal involved (misconduct, incapacity, operational requirements). Separate sets of rules have been developed for each category of dismissal. While such developments have no doubt been of some benefit there is a danger that procedural rules developed and distinguished in this manner may become too rigid to be of useful application. This is especially so where, as in this case, the dividing line between the category of misconduct and the category of incapacity is not easily and clearly drawn. Indeed many dismissal cases comprise elements from different categories. The most important, but not always the only, requirement is that the employee must always have a fair opportunity to meet the particular case against him. The question as to what is a fair procedure must be determined having regard to the particular facts and circumstances giving rise to dismissal (in this case, frequent and intermittent absences from work). It is against this background that, unlike the court a quo, we accept the procedural distinctions drawn by the English courts referred to above.

In our view, the company followed a fair procedure. It gave the applicant warnings to improve his attendance at work, to the extent that he was able to do so; it gave the applicant an opportunity to make representations to it. In essence the applicant contended that he was genuinely ill and that the cause of the influenza was his working conditions. The company investigated the latter assertion and decided it had no substance. There was no adequate improvement in the applicant’s attendance record. This record was thoroughly reviewed by the company. By the end of 1991, the company was justified in treating the persistent absences as a sufficient reason for dismissing the applicant.

The appeal succeeds. The determination of the Industrial Court is altered to read: ‘The applicant’s application is dismissed.’

PRETORIUS, Assessor, concurred. Judgment

DU PLESSIS, Assessor: I have read the judgment of the chairman of this court. I will, as was done in that judgment, refer herein to the appellant as the company and to the respondent as the applicant.

It is not clear what the company’s reason was for dismissing the applicant. The court a quo found that the applicant’s dismissal was ‘for the misconduct of being dishonest with his sickness absences and thereby abused his sick leave’. In the contemporaneous documentation pertaining to the dismissal of the applicant and in the court a quo the company was equivocal about its reasons for dismissing the applicant. Although a theme of ‘abuse of sick leave’ is present in the evidence on the part of the company, another reason was also proffered, namely that the applicant was, as a result of illness, too frequently absent.

In my view of this lack of clarity on the part of the company as to the basis of its complaint against the applicant was one of the factors which ultimately led to, what I

find to be, the unfair dismissal of the applicant. In stark terms the company could I not decide whether the applicant was guilty of misconduct or whether he was incapable, due to medical reasons, of performing his duties satisfactorily.

The applicant’s record of absenteeism for sickness and injury was dismal but so too was the company’s approach to dealing with this problem. The applicant’s record of absenteeism for sickness and injury and the steps taken by the company in that regard are as follows

[The court reviewed the applicant’s record from 1988 to 1991, and then continued:]

In the four years of his employment prior to the disciplinary enquiry which resulted in his dismissal the applicant was therefore confronted about his sick leave absenteeism on three occasions. The letter of counselling was given to him after 19 months of employment in which time the applicant had taken sick leave on 13 occasions for a total of 32 days. He was given the written warning after a further period of seven months in which period he had taken sick leave on five occasions for a total of 11 days. The letter of reprimand was given to the applicant some 161/2 months after the written warning in which period the applicant had taken sick leave on 11 occasions for a total period of 36 days.

Contrasted with the time it took for the company to react to the applicant’s sick leave record in the above instances, the disciplinary enquiry which resulted in the dismissal of the applicant took place six months after the letter of reprimand had been issued and after the applicant had taken sick leave on three occasions for a total of eight days.

Although the applicant’s supervisor, Mr Badenhorst, referred in his evidence to his having at times spoken informally to the applicant about his sick leave absences, there was no detailed evidence in this regard.

No version about such counselling was put to the applicant in cross-examination despite the applicant’s having stated the following while he was being cross-examined:

‘Respondent’s representative: So I would be correct then to say that your dismissal wasn’t a sudden step by the company, but the result of a number of steps that the company took to try and get you to correct your sick leave record?

Applicant: I don’t agree with you.

Respondent’s representative: What don’t you agree with?

Applicant: I don’t agree with you when you say that the company took step by step by trying to talk to me in connection with my sick leave, because when you’re sick at work the company will only say this is not a hospital, or when you go to work and you are feeling sick you know they’re going to say that same word again and you don’t feel right when its said to a person.’

No mention of any such informal counselling was made in the two reports which were compiled by Mr Badenhorst for the purposes of the two disciplinary enquiries which were convened in respect of the applicant’s alleged abuse of sick leave which led respectively to the letter of reprimand and to the dismissal of the applicant.

When Mr Badenhorst was asked during his own cross-examination why it was not put to the applicant that he, Badenhorst, had spoken to the applicant about the applicant’s sick leave absences in October 1991, Mr Badenhorst first said that he did not know why the respondent’s representative had not mentioned this to the applicant. Later Mr Badenhorst admitted that he had not told the respondent’s representative about the

discussions which he alleged took place in October 1991. The respondent’s representative informed the court a quo that he was not aware of such discussions until Mr Badenhorst mentioned them ‘now today’.

In the light of the above I find that the evidence produced by the company is insufficient to show what, if any, informal counselling of the respondent in regard to his sick leave absences took place

Although the applicant’s record also shows that he was guilty of absence related offences which had nothing to do with illness or injury, these other offences were not considered by the company at the time of the applicant’s dismissal to be relevant to the dismissal. For this reason these offences and the disciplinary steps taken in regard thereto have also been disregarded for the purpose of this judgment.

It was common cause that the company pays 15 days’ sick leave per year and that further sick leave in a year is unpaid.

Employees who are members of one of the company’s pension funds can be medically boarded by the pension fund trustees when medical evidence available to the trustees indicates that an employee is no longer capable of performing the duties he or she was employed for or in any other suitable position within the company. Where an employee is medically boarded he or she is given a lump sum and a monthly pension depending on his or her length of service and salary. The applicant was a member of one of the company’s pension funds. The parties however agreed that no medical evidence was presented to the company or the pension fund to suggest that the applicant should be medically boarded.

The company had ‘rules and regulations’ which were applicable to the applicant and of which the applicant was aware. Of these, and indeed of all of the terms and conditions of the applicant’s employment, the only provision which the company has suggested the applicant contravened was rule 14 of the ‘rules and regulations’. This is not to say that the company did not, or could not, rely for the dismissal of the applicant on a ground not specifically provided for in the terms and conditions of employment or in the ‘rules and regulations’. (So, eg, even though the ‘rules and regulations’ make no provision for action to be taken against an employee who on a single occasion takes sick leave and obtains a medical certificate when she is not ill, there can be no doubt that the company would be entitled to discipline that employee.) As I have said above, it is not clear what the company’s reason was for dismissing the applicant.

Rule 14 reads as follows:

’14 FREQUENT SICKNESS ABSENCE

An employee frequently absent through sickness is liable to have his services terminated on the grounds of unsatisfactory timekeeping.’

In respect of ‘unsatisfactory timekeeping’ reference must be had to rule 5 the relevant portion of which reads as follows:

‘5 TIMEKEEPING

(a) Employees shall be at their working places at the hours posted for their department.

(b) An employee may render himself liable to dismissal if his timekeeping is not satisfactory.’

Rule 14 is problematic and it may be that the lack of clarity which the company evinced in its reaction to the applicant’s sick leave absences arose from this rule itself. The linking in this rule of frequent sickness absence with unsatisfactory timekeeping leads to the impression that this rule was directed towards misconduct and culpability on the part of an employee. This impression is reinforced by the placing of rule 14 not immediately after the rule headed ‘sickness absence’ but only after the interposed rule on ‘absence without leave’, which latter rule clearly relates to misconduct.

The other difficulty with rule 14 and its application is the uncertainty which it leaves as to what will be considered to be overly frequent absence through sickness. This is not to say that in formulating a rule such as this one it is possible or desirable to eliminate flexibility. But the consequence of such flexibility is that it places greater demands on the procedures followed in the rule’s application.

Despite the impression that rule 14 may create, I am satisfied that this rule was intended merely to give effect to the principle that an employer is not obliged to keep in its employ employees whose state of health precludes them from sufficiently regularly performing duties for which they were employed. In technical terms this rule may be described as providing for the no-fault termination of employment due to incapacity arising from illness.

In the present case the company did not dispute that the applicant was sick on the days that he took sick leave. In the light of this the company was entitled to rely, in dismissing the applicant, only on incapacity and not misconduct.

Where an employee feigns illness an employer will be entitled to take that employee at face value and terminate the employment on the basis of the above principle without further establishing that the employee was genuinely ill. If however an employer were to adopt such a course the procedure which would have to be followed would have to be a procedure which is fair in the light of the reason for termination, ie incapacity arising from illness.

In considering the substantive fairness of a dismissal for incapacity due to ill health the court and the employer must in the first instance ascertain whether the employee because of his illness (or feigned illness) is or is not capable of performing the work for which he or she was employed. (See Davis v Clean Deale CC (1992) 13 ILJ 1230 (IC) at 1232G-H; National Union of Mineworkers & another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) at 589C.) Other relevant factors to be ascertained and assessed would include the nature of the incapacity; the likelihood of recovery, improvement or recurrence; the frequency and duration of absences and their effect on the employer’s operations; and the effect of the employee’s disability on the other employees. (See Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 15 ILJ 304 (LAC) at 313A-C 314B.)

From the point of view of procedure it is my view that fairness requires that where an employer envisages taking steps against an employee on the basis of incapacity due to ill health, the employee should be kept informed and be properly consulted in the course of ascertaining and assessing those substantive factors, some of which are referred to above, which will be taken into account should the employee ultimately be dismissed. I adopt, with respect, what Nugent J said in the Libanon case at 589C-D:

‘While an employer may not be obliged to retain an employee who is not productive, in my view fairness requires that a proper assessment be made of whether that situation has been reached before the employer resorts to dismissal. A fair employer will ensure that the employee concerned, assisted if needs be by his trade union, will be kept informed, and will be properly consulted, in the course of making that assessment.’

(See also the Libanon case at 588E-I and 589E-G.)

In a case such as the present the procedure followed by an employer is inextricably linked to the substantive fairness or otherwise of the dismissal. In this regard I, again with respect, endorse the statement by Nugent J in the Libanon case at 589I-J:

‘What is in issue is the respondent’s act of terminating the appellant’s employment. Observance of a fair process is in my view fundamental to the question whether its decision to do so was fair. In my view the fairness or otherwise of the decision cannot be divorced from the process by which it was arrived at. It is through fair process that fair decisions are generally reached.’

On a fundamental level where, as in the present case, there is an express rule providing for termination of employment in the event of an employee’s being ‘frequently absent through sickness’, it can only be through a ‘procedure’ that content can fairly be given to the word ‘frequently’. An employee or employees must in some manner (procedure) be informed what the employer views in their case to be frequent absences such as will lead to the termination of their employment.

In the present case the company at no stage indicated to the applicant what it considered to be the maximum sick leave which he could take without being dismissed. In my view, in the language of Waterhouse J in the English case of International Sports Co Ltd v Thomson [1980] IRLR 340 at para 15 on 342 (a passage relied on by the chairman of this court in the present case and by Mr Barrie), no ‘appropriate warnings’ were given by the company to the applicant.

In the first year of his employment (December 1987 to December 1988) the applicant was absent due to ill health on seven occasions for a total of 15 days without being informed that this was excessive. In the first six months of his employment the applicant was absent due to ill health on three occasions for five days and in the second six months on four occasions for ten days.

Halfway through the second year of his employment (1989) the applicant was informed, in the letter of counselling, that sick absenteeism on 11 occasions in a six-month period was totally unacceptable, that he should improve his sick leave record and that the company envisaged taking further action if improvement was not immediately seen.

The reference in the letter of counselling to the number of occasions on which the employee was absent due to illness is not entirely satisfactorily. Each occasion could have encompassed one day’s absence or many days and an employee such as the applicant may have gained the impression that the employer was more concerned about the number of occasions rather than the number of days on which an employee is absent. As has been indicated above, the applicant actually only took sick leave on six occasions for a total of 17 days in the period referred to in the letter of counselling.

Two things are clear from the letter of counselling. Firstly the letter conveys the impression that the company looked at a six-month period in assessing the acceptability of the rate of absenteeism due to ill health. Secondly the letter informed the applicant that his present rate of sick leave absences was unacceptable and that he should improve thereon.

In the next six months (July to December 1989) the applicant showed an improvement in his sick leave absenteeism: he was only absent on four occasions for a total of nine days. The company also, by not taking any action against the applicant at the end of that six-month period, gave the impression that it recognized this improvement on

behalf of the applicant and that the applicant’s sick leave absenteeism was now within acceptable bounds.

The written warning of 1 February 1990 is confusing in this regard. The incorrect reference to a verbal warning on 12 October 1989 has already been referred to above. Without this reference to a verbal warning there is no indication in the written warning of the rate of sick leave absenteeism which the company found ‘totally unacceptable’ in the applicant’s case.

Even if the one occasion in January 1990 on which the applicant took two days’ sick leave is added to the four occasions totalling nine days on which the applicant was absent on sick leave in the second half of 1989, the applicant still showed an improvement compared to the first half of 1989.

In the first six months of 1990 the applicant was absent due to ill health on four occasions for ten days. This is almost on a par with his absenteeism in the last six months of 1989 (four occasions for nine days). Again, it would appear as if the company accepted this as being an acceptable rate of absenteeism due to ill health; no action was taken. In the second half of 1990 the applicant was absent on two occasions for a total of six days. This was again an improvement on his record in the previous six-month period. No action was taken against him.

The first half of 1991 was the worst for the applicant. He was absent as a result of sickness or injury on six occasions for a total of 26 days. In June 1991 the applicant was given the letter of reprimand.

In regard to the rate of sick leave the company considered to be unacceptable the letter of reprimand is at variance with the findings of the disciplinary enquiry which led to the letter of reprimand being issued. The letter of reprimand refers to the applicant’s having been on sick leave on 11 occasions totalling 37 days during the previous 14 months. These figures include absences on three occasions for 20 days between January and March 1991 due to a problem which the applicant had with one of his shoulders. In the ‘findings’ of the disciplinary enquiry it is stated that the applicant’s absence due to his broken arm and shoulder were not considered. It is not clear why this sick leave should have been disregarded by the disciplinary enquiry.

The company’s view of what it considered to be an unsatisfactory rate of sick leave absences was thus again not clear. A period of 14 months now appears to have been the period over which the applicant’s sick leave was to be measured. On the basis of the letter of reprimand sick leave absence on 11 occasions covering 37 days is considered to be unacceptable. This translates into six-month figures of 4.7 occasions totalling 15.9 days.

Although the letter of reprimand called on the applicant to show improvement, the company still did not indicate to the applicant what it considered to be the maximum rate of sick leave which would be acceptable in the applicant’s case. Put in another way, the applicant was not informed how much his attendance would have to improve to avoid his being considered to be incapacitated due to ill health.

Subsequent to the letter of reprimand the applicant showed a marked improvement in his absences due to ill health. For a period of 31/2 months the applicant was not sick at all and in the six-month period between the letter of reprimand and his dismissal he took sick leave on a total of three occasions for eight days.

Apart from the first six-month period of his employment (in 1988) and the second half of 1990, the applicant’s sick leave record for the second half of 1991 was better than any

other half-year period during his employment with the company. There were three half- year periods in respect of which the company took no action against the applicant in which the applicant’s sick leave record was worse than in the second half of 1991. The applicant’s sick leave record in the last six months of his employment was also better than any of the rates of sick leave which the company had indicated were unacceptable.

In the light of the above analysis it is in my view apparent that the company dismissed the applicant on the basis of a standard of incapacity which had never been communicated to or discussed with him. Without having discussed this standard with the applicant, the company did not and could not consult with the applicant on the likelihood of his health improving sufficiently to allow him to comply with the company’s requirements in regard to his capacity.

By saying this I am not saying that the employer’s, undisclosed, standard was inherently wrong. The procedure by which it was applied was however unfair. An example of a fair procedure which could have been adopted by the company when it first decided that the applicant’s sick leave was excessive could have been a system of carefully prescribed and monitored sick leave cycles. In International Sports Co Ltd v Thomson eg, the final warning stated:

‘Current level of absenteeism is unacceptable, 22%. Other than extenuating circumstances, this should be improved to 8% or less to be checked on a monthly basis.’

If, whatever the sick leave regime is, it becomes apparent to an employer that the system is being abused by an employee, disciplinary steps for misconduct are always available to the employer. If necessary, procedures could be put in place to establish whether the employee is genuinely sick on the occasions that he claims to be.

Lest the spectre of the ‘no difference principle’ appears in some form I add that in my view it is not at all inconceivable or unrealistic that, if the applicant had known what the company’s standard for an unacceptable frequency of sickness related absences was, he may have been able to reduce his rate of sick leave sufficiently to comply with that standard. He could have taken greater care of his health or, and there is evidence that the applicant did this on occasion, he could have worked despite his health not being entirely up to scratch. If indeed the applicant was feigning illness, as the evidence shows the company suspected, then one could expect that the applicant would have ensured that his sick leave did not transgress the bounds of incapacity establised by the company.

I am of the opinion that the court a quo was correct in reinstating the applicant. To this extent the appeal should be dismissed.

In the light of the applicant’s poor record of attendance at work I consider that it would be unfair for the company, in addition to having to reinstate the applicant, to be compelled to pay the applicant for further time during which his services were not rendered to the company. To the extent that the court a quo ordered the company to pay the applicant his salary or wages which he would have earned had he not been dismissed, the appeal should be upheld.

No order should be made for costs.
Appellant’s Attorneys: Brink Cohen Le Roux & Roodt Inc, Johannesburg.