Record of disciplinary sanction

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Guidelines:  Suggested steps to follow when conducting an investigation into misconduct

 

1. Decide whether to investigate

 

First determine whether an investigation is required. In situations where all the employees agree on what happened or the problem appears to be minor, it may be unnecessary to conduct a full-blown investigation. Usually, however, it may be better to conduct an investigation to ensure the problem is properly understood. An investigation is recommended in the case of serious misconduct.

 

2. Choose an investigator

 

In most small businesses, investigations are undertaken by the owner of the business or a manager within the business.  The main requirement is that the investigator adopts an impartial investigation and does so in a manner that respects the rights and dignity of all concerned.

 

3. Plan the investigation

 

An investigation needs to be thorough.

 

Identify what rule or standard the employee is alleged to have breached. Ensure that the rule is reasonable and lawful and that the employee knew the rule he / she is accused of breaking or should reasonably have known the rule.

 

Check for consistency of application and sanction for similar offences.

 

All available information should be gathered. Determine whether there are any witnesses to the events.

 

4. Conduct interviews

 

By asking people questions, an investigator is able to obtain valuable information about the matter.  The employee who is alleged to have committed misconduct should be interviewed, as should the employee who complained of the wrongdoing.  Other witnesses should also be interviewed where applicable and statements taken from them.

5. Gather documents and other evidence

 

A number of investigations may rely on documents, for example, e-mail messages, company policies, correspondence, and so on. Other investigations may require other types of evidence such as, social media posts, a recording, a weapon, photographs, or stolen items. These should be collected and retained.

 

6. Evaluate the evidence

 

The most challenging part of many investigations, especially if witnesses disagree or contradict each other, is to determine what actually happened. Do not make assumptions – gather facts. Base the investigation on observation, statements, records, data and interaction with supervisors.

 

Investigators need to determine how probable it is that the allegations are true. Based on this information the employer will have to determine whether or not there is sufficient evidence to charge the employee and convene a hearing. Where there are conflicting stories, assess the probabilities by considering whose story makes the most sense, whose version was more convincing, and whether those interviewed may have a motive to lie. Bear in mind that guilt needs to be proved by the employer based on a balance of probabilities (NOT beyond a reasonable doubt).

 

7. Document the investigation

 

Once the investigation is complete, the investigator should make notes to record what was done and why. Among other things, the notes should explain how and when the allegations came to the employer’s attention, what interviews were conducted and what evidence was obtained. These notes will also guide input at a disciplinary hearing which may follow an investigation.[/vc_column_text][vc_column_text]

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Guidelines Suggested steps to follow when conducting an investigation into misconduct

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How to formulate allegations

 

• Ideally, the person who investigates the matter should be the person who formulates the allegations against the employee. This person would be best informed about the incident.
• The allegations must be formulated clearly and correctly.
• The formulation of the allegations is important. If an employee is incorrectly charged it may be difficult to prove the intended allegations against him/her. It is also unfair on the employee and impacts on his/her her ability to prepare a response to the allegations and to know what evidence is required.
• The way the allegations are drafted is important as incorrectly drafted allegations may have the following consequences:
  • Cause damage to the reputation of the employee, especially if the wording of the allegations implies criminal activity without actual justification for this.
  • Ambiguous allegations are confusing for employees and also pose difficulties for employers to prove.
  • Where allegations are criminalised (e.g. an accusation of theft), there is more of a duty on the employer to show that the employee is “guilty” on all the elements of that charge such as intent to steal). Allegations stick, so one should be sensitive to the nature of the wording used.
• In EOH Abantu (Pty) Ltd v CCMA and Others (2019) 40 ILJ 2477 (LAC) paragraph 16 the Labour Appeal Court stated that it is best for the charges to be precisely formulated and be specific enough for the employee to answer them. However the courts have more recently confirmed that employers are not
  expected to draft charges with the same precision as would be required in a criminal court, as long as the essence of the charge is clear.
• Don’t complicate the allegations. The allegations should be written in plain language outlining the conduct complained of and should be as clear as possible.
• Be specific in drafting allegations. The date, time, place and conduct complained of should be referred to so that the employee knows what the allegations against him / her are.
• A mistake that employers can make in drafting allegations is to make the allegations complicated or attempt to classify the misconduct, without referring to the incident giving rise to the allegations. This fails to assist the employee and the employer in developing a proper understanding of how to prepare for disciplinary proceedings.
• It is suggested that the allegations start with the words “it is alleged that…” Using the word alleged is important since the employer is communicating that they haven’t made a finding yet.
• It is important to charge an employee correctly as finding an employee guilty of an offence he was not charged with would be procedurally incorrect as the employee would not have prepared his or her defence at the disciplinary enquiry in respect of that charge. However a “competent verdict” is possible,
  where an employee is found guilty on a lesser charge; for example a finding of guilty of ordinary negligence, when the employee has been charged with gross negligence. Such a finding is possible only if the employee has had a fair opportunity to defend him/herself on that charge.

 

Consider the following example:

 

An employee is absent from work from the 21^st to the 25^th of January.  The employee did not have permission to be absent and did not telephone the company or let the company know where s/he was and why s/he was absent.  The allegation may read:

“Gross misconduct in that it is alleged that you were absent from work from the 21^st to the 25^th of January 2018 without authorisation/permission. During this time you did not inform the company of the reason for your absence as is required in terms of company policy”.

 

• Other examples:
  • Physical assault
    “Gross misconduct in the form of assault in that on the 1^st of October 2017 at approximately 16h00 hours at the 15^th floor, Cromwell Office Park, Johannesburg; in the passage opposite room 502, it is alleged that you hit and punched Mrs Philippa Ndlovu.”
  • Breach of safety rules
    “Misconduct in that it is alleged that you broke the safety rules by not wearing a safety helmet and a harness on Friday the 6^th of September 2018, at approximately 10h00 am at the Pearl Resort construction site, when you ascended the crane that you were operating.”
  • Misrepresentation of the truth/being untruthful
    “Gross misconduct in that it is alleged that you misrepresented your qualifications on your CV by falsely indicating that you hold a Bachelor of Arts Degree from Wits University and a Master’s Degree from Stanford University.”

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Guidelines for Formulating Allegations

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How to manage the employment relationship where the employee’s behaviour requires addressing (misconduct)

 

Employers and employees must treat each other with mutual respect to ensure fairness in the employment relationship and the efficient operation of a business.

 

An employment relationship requires the employer to treat the employee fairly. It also requires the employee to obey lawful and reasonable instructions and rules in the workplace. The employer is entitled to expect that the employee conducts him/herself in a satisfactory manner.

 

Employers need to establish rules or standards of conduct

 

All employers should be clear about the rules and standards of conduct that are expected of employees. This may be done through the employment contract, through a separate disciplinary code, through communication with employees and through managing behaviour in the workplace.

 

The type of rules and how they are communicated will vary depending on the size and the nature of the business.

 

The rules must create certainty and must be applied consistently. The standards of conduct must be clear and made available to employees in a manner that is easy to understand.

 

Some standards need not be communicated for the employee to know that they are wrong, for example dishonesty or sexual harassment, where all employees should know that such conduct is unacceptable.

 

Where an employee contravenes a rule or standard of conduct, an employer may take disciplinary steps against an employee for misconduct.

 

What is misconduct?

 

“Misconduct” relates to unacceptable conduct which breaks the rules or standards established by the employer or commonly known to be unacceptable in the workplace, or conduct which amounts to a criminal offence.

 

Misconduct involves an element of wilfulness and blameworthiness (the employee should have known) on the part of the employee.

 

A rule or standard is usually contained in a contract of employment, disciplinary code, collective agreement or written policy.  A rule is also any basic rule of conduct applicable in all workplaces and any special rule that may flow from the sector or the nature of the employer’s operations.

 

Employers may have rules clearly outlined in “disciplinary codes” or if there is no code, in a contract of employment. However, there are some offences, which are so universal, well-known or obvious, that they do not necessarily need to be written down.

 

Universal, often unwritten, rules include:

• Duties relating to performance, e.g. The duty to work, to keep time, and to comply with lawful and reasonable instructions.
• Duties relating to good order, e.g. The duty to co-operate, to respect co-workers, not to assault or harass co-workers and not to disrupt the business.
• Duties relating to trust,  e.g. The duty not to be dishonest or to undermine the employer’s business or reputation.
• Duties relating to respect of co-workers, and those of suppliers and customers of the employer e.g. The duty not to harass, or racially insult others in the workplace.
• Duties relating to good hygiene and safety in the workplace.

 

What are examples of misconduct?

 

The following list is not exhaustive, but covers the more common examples of misconduct:

• Theft;
• fraud;
• unauthorised possession of company property;
• unauthorised use of company property;
• deliberate damage to company property;
• negligence;
• late-coming;
• unauthorised absenteeism;
• reporting or working under the influence of intoxicating substances, consuming, or possessing, illegal substances;
• insubordination or failure to comply with a lawful and reasonable instruction given by a person who has authority to give such an instruction;
• insolence;
• assault;
• sexual harassment;
• bringing the reputation of the employer into disrepute.

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How to manage an employee’s conduct in a fair manner in the case of less serious misconduct

 

An employer does not have to resort to formal disciplinary procedures every time an employee breaks a rule or does not meet a standard unless the offence is very serious. The starting point of discipline will depend on the seriousness of the offence.

 

Progressive or corrective discipline

 

One of the purposes of progressive discipline is to make an employee understand what standards are expected of him/her. An employer should try to change or correct behaviour and not just to punish employees for offences committed. Where discipline is applied only with the purpose of punishing employees, healthy labour relations, motivation and productivity levels in an organisation are undermined. Discipline should have a positive effect.

 

Correcting an employee’s behaviour through a gradual system of counselling and warnings will assist the employee to understand what standards of behaviour are expected of him/ her.

 

The employer does not have to use formal procedures every time an employee breaks a rule. An employer can talk to an employee informally to try to correct his or her behaviour in the case of minor misconduct.

 

Where misconduct is repeated, progressive sanctions from verbal, to written, to final warnings may be used to pressurise an employee to change his or her behaviour. Improved behaviour should be encouraged and supported.

 

Warnings

 

A first minor offence will generally warrant a verbal warning (perhaps after discussion and direction has proved ineffective), whereas a more serious offence may warrant a written or final written warning for a first offence.

 

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Disciplinary records

 

Employers should keep a record for each employee which captures disciplinary transgressions and the actions that the employer took and what the reason was for taking such actions. The record may include active warnings as well as disciplinary records that document a history of transgressions.

 

What procedure should an employer follow when administering progressive discipline?

 

In cases of less serious misconduct, a less formal process may be followed:

 

1. Advise the employee of the allegations against him or her, and ensure that the employee understand the allegations.
2. The allegations should be specific; for example, an employer should not simply confront the employee about his/her “attitude”.
3. Invite the employee to discuss the allegations.
4. In the case of a minor misconduct where an employee may only need to be given informal advice and a warning is not warranted, it may not be necessary for the employee to have a representative at the meeting. However, if there is a possibility that a verbal or written warning may be issued (in the case where an offence has been repeated and a previous discussion has proved ineffective or in the case of a more serious misconduct), advise the employee that s/he may bring a representative to the meeting.
5. The employee may be represented by a fellow employee or a trade union representative (shop steward). Assistance by a trade union official only applies if a trade union has been granted organizational rights to have elected shop stewards for this purpose. A trade union representative who does not satisfy this criterion may only assist an employee if s/he is a fellow employee.
6. If necessary, where an employee does not understand English well, advise the employee that he or she may bring a fellow employee to assist as an interpreter.
7. If applicable, advise the employee that the employer will be taking notes and/or recording the proceedings.
8. Go through the allegations against the employee.
9. Provide hard evidence to back up the allegations – avoid general observations.
10. Explain to the employee what rule or standard of conduct he or she has contravened (where appropriate, refer to the employee’s contract of employment or a disciplinary code, policy or collective agreement if there is one).
11. Explain what impact the employee’s conduct has on the business.
12. Give the employee the opportunity to comment and respond.
13. Listening actively and open up the discussion.
14. Listen and respond to the employee’s concerns.
15. The employee may have a valid reason for why a rule or standard was contravened.
16. In case of a minor misconduct or a first offence where a warning is not warranted, explain to the employee that if the offence is repeated it could result in a warning.
17. In the case where an offence has been repeated and a previous discussion has proved ineffective or in the case of a more serious offence an employee may be issued with a verbal, written or final written warning.
18. Where a final written warning is issued, explain to the employee that if the offence is repeated it could lead to dismissal.
19. A written record of sanction should ideally be handed to the employee and a copy kept by the employer.
20. The employee should be requested to sign the employer’s copy of the sanction as acknowledgement of receipt and not acceptance of the sanction
21. If the employee refuses to sign, a witness should be asked to sign as confirmation that the sanction was handed to the employee.
22. The employer must keep a record of the counselling sessions and any disciplinary sanctions that were issued to the employee. These may be required to justify a subsequent dismissal by showing that progressive/corrective disciplinary process has been followed by the employer.
23. Dismissal should be the last resort (although may be applied for a first offence in cases of serious misconduct).

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Dismissal should be the last resort

 

Dismissal should be reserved for cases of serious misconduct or in the case of repeated offences.

 

Examples of serious misconduct are:

 

• Gross dishonesty or wilful damage to the property of the employer;
• Wilfully or recklessly endangering the safety of others;
• Physical assault, racial or sexual abuse of an employee, client or customer; and
• Gross insubordination;
• gross negligence.

 

This is subject to the rule that each case should be judged on its merits.

 

In the case of very serious misconduct which has the effect of making a continued employment relationship intolerable, progressive discipline may be dispensed with and the employee dismissed summarily, without the need to serve a notice period, after holding a hearing.[/vc_column_text][vc_column_text]

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How to manage an employee’s conduct in a fair manner in the case of serious misconduct

 

Preventative or precautionary suspension

 

Where it is suspected that the employee has committed a serious offence and there is good reason to believe that his or her presence at the workplace could disrupt or interfere with any investigation or cause harm to the employer’s property or to any individual, it may be necessary to suspend the employee on full pay as a precaution while the matter is being investigated and up until the disciplinary enquiry has been finalised. Precautionary suspension is usually on full pay and without interruption of employment-related benefits.

 

Before taking the decision to suspend the employee, the employee must first be given the opportunity to state whether he or she believes whether the proposed suspension is justified and necessary. The employee should be served with notice of suspension.

The Constitutional Court has held that it is not necessary to give the employee an opportunity to make representations prior to being placed on precautionary suspension by the employer, unless this step is specifically included in the employer’s disciplinary procedures [see Long v South African Breweries (Pty) Ltd & others (2019) 40 ILJ 965 (CC)].

 

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Conduct an investigation

 

If an employer suspects that an employee has committed a serious offence that may warrant disciplinary action that could result in dismissal, the matter may first be investigated before drafting allegations (also referred to as charges) for an employee to respond to.

The purpose of the investigation is to to determine whether there are grounds for taking action against the employee, to find facts which support the allegations against the employee and to determine whether the facts are likely to stand up at a disciplinary enquiry. Allegations made against the employee must be based on facts. One may not act simply on the basis of assumptions.

 

A proper investigation could reveal that there may not be a case of misconduct against an employee or that what appeared to be serious misconduct may not be so serious.

 

Where an investigation confirms alleged serious misconduct where dismissal might be an outcome, a disciplinary enquiry should be convened. This could be a formal or informal enquiry, but it is not a legal requirement to hold a formal disciplinary hearing unless the employer’s disciplinary policy or a binding collective agreement requires this.[/vc_column_text][vc_column_text]

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How to manage the employment relationship where the employee’s behaviour requires addressing (misconduct)

Probation

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How to manage an employee who is on probation

 

What is probation?

 

The word probation means to undergo a test or trial period.

The start of an employment relationship creates certain obligations which both parties must meet. In order achieve the main objective of putting one’s productive capacity at the hands of the employer in return for remuneration, employers and employees generally need an opportunity to test one another to determine whether they can continue working with one another for an extended period of time in a productive employment relationship.

 

It is generally accepted that an employer may subject an employee to a period of probation at the start of employment.

 

Probation, and the rights and obligations of employees and employers during probation is dealt with in Schedule 8 to the Labour Relations Act 66 of 1995 (LRA), the Code of Good Practice: Dismissal (the Code). Item 8 of the Code states that: “An employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed”.

 

Employers need to know what their rights and obligations are during the employee’s period of probation. This will ensure that the objective of assessing the employee’s suitability for continued employment is achieved in a fair manner.

 

What is the purpose of placing a new employee on probation?

 

According to the Code, the purpose of probation is to give an employer a chance to assess the employee’s performance, suitability and compatibility before deciding whether or not to confirm the employee’s appointment. During this period the employer must decide whether or not the employee is suitable for the job, whether or not s/he can perform the tasks the job requires, and whether or not this performance is satisfactory. During this period of probation the employer also has to see whether or not the employee gets on with the other employees, and is able to adapt and fit in at the new business.

 

During the probationary period, the employer should guide the employee so that the employee can perform his/her job properly in order to have the job confirmed.

 

How long should the period of probation last?

 

The Code does not say how long a period of probation should last. All the Code requires is that the employer must decide how long the probation is going to be before taking the employee on and must communicate this to the employee.

 

The length of the probation must be reasonable and should relate to the type of job. It must also link to the time it will take to decide whether or not the employee is suitable for the job. Therefore, if a job is difficult and more complex, or if the employee has little experience in the particular work, it may take an employer a longer time to decide whether the employee is suitable or not. It will not take an employer a long time to decide on the suitability of an employee that is hired to clean the offices, for example.

 

Overall, the period of probation is generally between 3 and 6 months.

 

Probation and the contract of employment / written particulars of employment

 

Probation does not automatically form part of the employment contract or written particulars of employment. Probation must be added to the contract of employment or written particulars of employment. The contract of employment or written particulars of employment must specifically state that the employee will be on probation, the length of the probation, and the starting and ending date of the probation period. If the employee is not informed upfront that s/he will serve a period of probation, s/he may assume that his/her position in the organisation is confirmed and this may lead to a dispute if this was not the intention of the employer.

 

Guidelines for employer’s during probation

 

The employer has the following obligations towards an employee who is on probation:

• The employer must decide on how long the period of probation will be before taking the employee on. The employer must tell the employee how long the probation will be. This should be done in writing and included in the employment contract.
• The employer should have a discussion with the employee before taking him/her on. The employer should make sure that the employee knows exactly what type of job s/he will be doing and what duties and responsibilities s/he will have. The employee should be upfront and advise the employer if s/he does not have some or all the skills that are necessary for the job. If the employer is aware that the employee lacks certain skills the employer should draw up a plan to assist the employee to obtain these skills. The plan must have time periods and deadlines.
• An employer should apply similar probation conditions to all new employees in the same or similar position unless there is justification to treat employees differently. It would be unfair to place one employee on probation and not another one if they both come with the same qualifications, experience and skills.
• The employer should inform the employee how his/her performance is going to be measured. The employee should be told how often this will happen, who will do the assessment and what methods will be used to assess the employee.
• During the probation the employer should ‘check in’ with the employee. This will allow the employer to assess the employee and tell the employee whether or not s/he is performing reasonably, and if not, what his/her weaknesses are and how s/he needs to improve.
• The employer is expected to guide the employee, by giving him/her guidance, counselling, instruction, training, and evaluation, as may reasonably be required, on a continuous basis, during the probation period. The employer must therefore point out to the employee in which areas he / she is not competent. This is to assist the employee to perform in a satisfactory manner. The extent to which training is required will depend on the employee’s qualifications and past experience, but normally training will at least be required in the employer’s specific in-house systems.
• The employer should not wait until the end of the probation to tell the employee for the first time that s/he is not suitable for the job. This will defeat the purpose of probation, which is to assist and guide the employee during his/her probation, and to tell the employee what his/her weaknesses are during probation, so that the employee can improve to a satisfactory level.
• An employer may extend the probation period if the employee is not performing in a satisfactory manner but may be able to improve if s/he is given more time.

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How to manage an employee who is on probation

Drunkenness and drug induced conduct on duty

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How to determine whether the abuse of alcohol or drugs by an employee is misconduct or incapacity

 

The question often arises as to when alcohol abuse by an employee is misconduct and when it is incapacity.

 

The Labour Court has held that there are two broad categories relating to alcohol:

1. If an employee is an alcoholic and needs help, then this must be dealt with as incapacity.
2. If an employee is not an alcoholic but has breached a rule relating to alcohol, the appropriate approach would be to discipline the employee.

 

In the case of Transnet Freight Rail v TBC and Others C644/2009 the Labour Court said that:

 

“Where an employee is suffering under incapacity as a result of their alcoholism, the employer is under an obligation to counsel and assist the employee in accessing treatment for their disease. The purpose of placing such a duty on an employer is based on the current medical understanding of alcoholism – that it is a diagnosable and treatable disease. This disease results in the incapacity of the employee.”

 

The court further said, “In terms of how to deal with the employee, the distinguishing feature in such cases of alcoholism appears to be, as with all instances of incapacity, that the employee is not at fault for her behaviour- the employee cannot be blamed for their disease and its impact on their behaviour, and discipline would be inappropriate in the circumstances.”

Also, the court said “The category of misconduct for reporting for duty under the influence of alcohol has not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer under such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions, and can, and should be held accountable for any misconduct they commit.”

 

In a case that came before the CCMA involving alcohol, the arbitrator found that the dismissal of the employee for misconduct was fair. The employee, a bus driver was found to have consumed some eight times more than the limit of alcohol permitted for driving on roads. The employee denied that he had been drinking and stated that the breathalyser was unreliable. The company had previously counselled the employee, but he had said that he did not require assistance and that he had no alcohol problem.

 

The Labour Appeal Court has held that an employee is under the influence of alcohol if he / she is unable to perform the tasks entrusted to him / her with the skill expected of a sober person. The nature of the work performed by the employee is a factor which should therefore be taken into consideration. The Court went on to state that a breathalyser test is not necessary, as normal observations in respect of speech, red eyes, the smell of alcohol in the breath and the like could be used to determine intoxication.

 

The abuse of drugs

 

Unlike alcohol, the effects of drug use may be harder to identify in performance or behaviour. This makes the employer’s position very difficult. Another complicating fact is that some drugs can be present in an employee’s blood stream for up to six weeks after an employee last consumed the drug. Where an employee does test positive the employer cannot know with any certainty that the employee is “under the influence” to the extent of not being able to perform his/her job. This will have to be determined by empirical evidence (observation).

 

As with alcohol abuse, the same question as to whether the abuse should be treated as incapacity or misconduct arises with drug abuse. It is therefore advisable that the same test be used.

 

General considerations when dealing with alcohol or drug abuse

 

It is not always easy for an employer to know when an employee has an actual drug or alcohol dependency problem or whether it is just a case of isolated acts of misuse. While most employers do not have the required knowledge and expertise to determine whether clinical dependency exists, they can at least form an opinion of the extent of the problem that they as employers are dealing with and how best to manage this.

 

If the employer is uncertain as to whether there is a genuine dependency, an option is to send the employee for assessment at an alcohol / drug treatment facility. If the employee refuses to undergo such assessment to determine the extent of the dependency, the employer will be entitled to treat the matter as one of misconduct.

The following questions may be of assistance in this regard:

 

• What are the circumstances of the use of alcohol/drugs; i.e. did the employee have a once off binge or does s/he need to use alcohol/drugs every day?
• What is the degree of intoxication?
• Has the employee previously had problems with alcohol/drugs?
• Is there evidence of a long-term dependence on the substance?
• Does the employee acknowledge that s/he has an alcohol/drug problem?
• How did the issue come the employer’s attention? Did the employee come forward of his/her own volition?
• Does the employee want to be helped?
• How is the employee’s use of alcohol impacting his/her ability to work?
• Does the employee’s behaviour place his/her own safety or the safety of others in jeopardy?

 

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How to determine whether the abuse of alcohol or drugs by an employee is misconduct or incapacity

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How to determine whether the abuse of sick leave by an employee is misconduct or incapacity

 

Where an employee takes excessive sick leave, the question may be raised as to whether the employee is genuinely ill or whether the employee is in fact abusing sick leave. This will depend on the facts and circumstances surrounding the employee’s absence.

 

Factors that may be relevant include:

 

• Frequency of the absence;
• Whether or not the absence always happens at a particular time;
• Whether the employee provides a medical certificate;
• The employee’s conduct around the period of absence;

 

The following questions may assist in determining whether the employee’s behaviour amounts to misconduct or incapacity:

 

• What are the dates that the employee has been ill?
• Has he/she exhausted their sick leave?
• Do the dates of the sick leave suggest a pattern; i.e. is the employee typically sick on Mondays and Fridays or before or after a public holiday, or after a payday?
• What is the context of the employee’s sick leave?
• Has the employee submitted sick notes?
• What do the sick notes say?
• Do the sick notes look legitimate?
• Are the notes from one or several doctors?
• Is there any evidence that suggests that there may be other reasons for the employee’s absences (e.g. domestic violence, depression)?

 

Generally, if medical certificates are provided, the absence should be dealt with as incapacity provided they are not suspected of being tampered with. Where there is a reasonable suspicion of abuse of sick leave, the misconduct approach should be pursued. However, a fair process must be followed and the evidence produced to support a claim of misconduct.

 

In a case that came before the Labour Appeal Court, the employer dismissed the employee for abusing sick leave. The employer’s evidence was that the employee suffered from insignificant complaints such as shoulder pain and was usually absent on Fridays and Mondays.

 

The Labour Appeal Court found that the dismissal was fair and stated that it is not always possible to differentiate misconduct from incapacity. In this case, however, the employee had had a fair hearing and had been afforded an opportunity to improve. The employee was also informed of the consequences of her actions and that it was likely to result in dismissal.[/vc_column_text][vc_column_text]

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How to determine whether the abuse of sick leave by an employee is misconduct or incapacity

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Checklist: The Difference between Misconduct and Poor Performance (Incapacity)

Misconduct and poor performance enquiries are different. The checklist below is a guide and will assist the employer to determine whether the conduct in question is characterised as misconduct or poor performance:

MISCONDUCT	POOR PERFORMANCE
Blame is involved – intentional or negligent The employee is able but unwilling to meet the required standard of conduct	No blame or fault is involved The employee is unable to meet the required standard of performance
Breach of a workplace rule	Failure to meet  a workplace standard
Test to determine misconduct: Did the employee break a rule or standard regulating conduct in the workplace? Was the rule valid or reasonable? Was the employee aware of the rule? Was the rule consistently applied? Would dismissal be appropriate?	Test to determine incapacity: Did the employee fail to meet a performance standard? Was the standard reasonable / achievable? Was the employee aware of the required standard? Was the employee given a fair opportunity to meet the standard? Would dismissal be the appropriate sanction for not meeting the required standard? What alternatives to dismissal have been considered?
Steps that can be taken: Disciplinary steps are taken, including informal advice, correction, warnings or dismissal (following a disciplinary hearing) depending on the seriousness of the transgression.	Steps that can be taken: Training, instruction, guidance, evaluation, counselling and ultimately dismissal (following an incapacity hearing).

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The difference between misconduct and poor performance (Incapacity)