Take care with hearings if on sick leave

Barney Jordaan from Labourwise

Barney Jordaan from Labourwise

You can discipline an employee who is on sick leave but 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 assessment, the employee was too ill or injured to work for the period of absence. The certificate must be signed and indicate the visit’s date and time.

In these circumstances, it is advisable to postpone the hearing until after the return date indicated on the certificate, but state in the notice that further delays won’t be allowed and that the hearing might continue in the employee’s absence if s/he fails to appear.

Here is an example of a paragraph that may be included in the 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 s/he again be absent, again supported by a certificate, use your discretion as to whether or not to allow a further postponement, depending on whether you believe the illness is genuine. If you have reason to believe that the employee is abusing sick leave – for instance as it 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 allow at least one final postponement. One more postponement is probably advisable.

It might be there are reasons why you cannot delay the hearing any longer, for instance because the hearing’s outcome is important to minimise risk, or to be able to take action against others involved. In this event, we advise that you record the evidence and provide a printed copy to the employee and require a written response by a given date.

Consider the evidence in the light of the response and then decide on the employee’s guilt or innocence concerning the original allegations. If guilty, allow the employee an opportunity to provide mitigating factors in writing. You should also inform the employee of his or her right to appeal the decision, if your organisation provides an opportunity to appeal.

An example is the case of Solidarity on behalf of Van Vuuren versus 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 case’s circumstances, 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 advise that employers err on the side of caution and postpone at least once if the employee claims to be too ill to attend. If you have evidence supporting your belief that sick leave is being abused, however, you may be able to continue in the employee’s absence.

We advise that you inform the employee in writing about the reasons why you continued in absence and allow an opportunity to convince you that the absence was not deliberate.

, Labourwise, ,

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