PUBLIC SERVICE COMMISSION ROUNDTABLE POLICY DISCUSSION

DEALING WITH GRIEVANCES RELATED

TO ILL HEALTH

CONTENTS

1. General do’s and don’ts for grievance handling. 2. Absenteeism from work due to ill-health: Codes of Good Practice that play a role. 3. Dismissal due to Ill-Health: Procedural Fairness. 4. Dismissal due to Ill-Health: Substantive Fairness. 5. Substance Abuse. 6. Code of Good Practice: Employment of People with Disabilities. 7. Code of Good Practice: HIV and AIDS and the World of Work. 8. Absenteeism and the role of Traditional Healers: The Kieviets Kroon case. 9. With thanks to the following for their valuable input

1. General Do’s and Don’ts for Grievance Handling

• It is bad practice to jump to conclusions – investigate objectively. • Keep investigation time periods short – delays hamper the

procedure and make solution finding difficult. • Don’t discuss grievances without the aggrieved employee being

present. • Try to keep emotions of everybody involved under control. • A grievance can only be resolved if all the relevant facts are

explored. • Keep good records. • Give the aggrieved employee adequate opportunity to tell his

story. • Apply the same grievance procedures across the board. • Inform all employees/trade union members of the grievance

procedures.

2. Absenteeism from Work due to Ill-Health: Codes of Good Practice

Absenteeism due to ill-health should be managed taking into account: • Code of Good Conduct: Dismissals. • Code of Good Practice: Employment of People with Disabilities. • Code of Good Practice: HIV and AIDS and the World of Work.

3. Dismissal Due to Ill-Health: Procedural Fairness

The following elements are necessary for procedural fairness: • Employer must always look toward suitable alternative duties for the

employee. • Employee must be given the opportunity to state their case in response

to the findings of the employer. • The employee was offered assistance by a fellow employee during the

initial discussion with the employer. • The employer exhausted other avenues in dealing with the matter

short of dismissal.

4. Dismissal Due to Ill-Health: Substantive Fairness

The following elements are necessary for substantive fairness: • Employer must have established that the employee was no longer able to

perform his/her duties in terms of the agreed conditions of employment. • The actual nature of the incapacity must have been investigated to

determine if it was temporary or permanent in nature. • The employer must have explored alternative working environments/

circumstances to accommodate the employee’s disabilities. • Changes to the actual duties of the employee must also be considered to

accommodate the disability. • Any other alternative forms of suitable work should also have been

considered.

5. Substance Abuse

The Code of Good Practice: Dismissal makes it clear that in cases of substance abuse an employer has a duty to consider counselling and rehabilitation. In the case: Esau & Ander v Wynland Boerdery Belange (Edms) Bpk H/A Zetler Bros (1995) 16 ILJ 237 (ALC) the court found that an employer has a duty and a responsibility to prevent the abuse of alcohol in the workplace. Where an employee is dismissed for being drunk on duty in the agricultural sector, the court will investigate the extent to which the employer encourages and promotes the misuse of alcohol and whether it still makes use of the “dop” system on it’s farm. The employer must take into account the possibility of rehabilitation of an employee when determining the appropriate sanction for alcohol abuse. This is especially so where the employer shares responsibility for the employees alcohol addiction.

6. Code of Good Practice: Employment of People with Disabilities

Ill-health becomes a disability if it is: • long-term or recurring. • involves a physical or mental impairment ('Mental' impairment means

a clinically recognised condition or illness that affects a person's thought processes, judgment or emotions).

• substantially limiting if, in the absence of reasonable accommodation by the employer, a person would be either totally unable to do a job or would be significantly limited in doing the job.

• the employers must make “reasonable accommodation” for an employee’s disability, including where the disability causes absenteeism from work.

7. Code of Good Practice: HIV and AIDS and the World of Work

This code obliges employers to make “reasonable accommodation” for employees who voluntarily disclose their HIV status. Reasonable accommodation includes: • adapting existing facilities to make them accessible. • adapting existing equipment or acquiring new equipment

including computer hardware and software. • re-organizing workstations. • changing training and assessment materials and systems. • restructuring jobs so that non-essential functions are re-assigned. • adjusting working time and leave. • providing specialised supervision, training and support in the

workplace.

8. Absenteeism and the Role of Traditional Healers: The Kieviets Kroon Case

Kievits Kroon Country Estate v Mmoledi & others (JA 78/10) [2012] ZALAC 22 (24/7/2012)

FACTS: • Employee requested 1 month’s unpaid leave to complete sangoma training. • Employer refused to grant the leave. • Employee decided to attend the training anyway, leaving a traditional healer’s

certificate stating “perminissions of ancestors”. • Dismissed. • Traditional healer testified at the arbitration hearing that the employee was very

ill when she came to her for treatment and would have died or suffered a serious misfortune if she had ignored the ancestors’ calling and continued working.

• Arbitrator ruled that the dismissal was unfair. The commissioner held that she found herself in a situation of necessity, where the only recourse was to break the employer’s rule to save her life; her absence from duty was due to circumstances beyond her control. The refusal to grant her unpaid leave was unreasonable, as the consequences thereof would have been to place her life at risk.

9. Absenteeism and the Role of Traditional Healers: The Kieviets Kroon Case (Cont.)

LABOUR APPEAL COURT JUDGEMENT: • Upheld the arbitration award . • Listed the factors to be considered in assessing the fairness of a dismissal for

absenteeism, namely the employee’s work record, the reason for the absence, and the employer’s treatment of this misconduct in the past. The court commented that this was not one of those cases in which the employer did not know where the employee was.

• Also made a strong statement about the need for parties to acknowledge and respect diversity at the workplace, and took exception to the employer stating that it treated the situation in the same way as it would have done if the employee had requested unpaid leave for a karate course.

10. With thanks to the following for their valued input

With acknowledgement to

Prepared and presented by