By André Claassn
What is absent or absenteeism? What does it mean and can I overlook it or should I deal with it? What will happen if I don't deal with it? What harm can it do if an employee is a few minutes late? Questions, questions and more questions - but the most dominant consideration is usually that "we better leave it - just give him a verbal warning - we don't want to end up at the CCMA." Or sometimes - "have a chat to him about it." And so the problem is ignored, pushed aside, and eventually it is too late to do anything.
Absent does not only mean not being at work. Absent also means:
There are a number of remedies- a large number, in fact - that can be used to combat this scourge.
The duty of the employee to be at work
The very basis of the employment contract (whether written or not) is that the employee has to:
[a] come to work, and
[b] be on time
In order to perform the duties which he/she has been hired to do, and he/she must remain at the workstation for the contracted number of hours per day in order to perform the requisite duties. If the employee does not do that, he/she cannot fulfill his/her contractual obligation, and is therefore in breach of contract. This obligation - to come to work and stay on the job whilst at work - does not only come out of the Employment Contract. It arises also from three other sources - Common Law, Statutes, and Company Rules and Regulations.
Common Law is not laws that have been legislated by Parliament, but rather arise mainly from Court judgments and general practice and precedent. It is law that has developed over the years, and is what people have come to accept as recognized norms and standards, and which are enforced by our Courts. An employee has a number of obligations under common law which he/she must meet, and it should be noted that these obligations exist even if they are not specifically stated in the Contract of Employment:
[a] to provide the employer with his labor - i.e. to be at work.
[b] to obey reasonable and lawful instructions.
[c] to act in good faith. [ to protect his employer's interests.]
[d] not to misconduct himself/herself. [to behave properly according to the accepted norms of society]
[e] to perform his duties.[to work in a satisfactory manner]
For the purpose of this subject, the most important is the first Common Law rule - to provide the employer with his labour.
To do this, the employee must not only come to work - he/she must come to work on time, and be at the workstation during the agreed hours - even if the employer has no work for him to do. That may sound a bit strange, but remember that the employer is paying the employee to come to work and be at the workstation, even if the employer has no work for him/her to do. If the employee was paid only for work done then he/she would be entitled to leave the workstation if there was no work to be done. But that is not usually the case.
If the employee does not do these things, he/she may well be in breach of his/her Common Law conditions of his/her employment contract and is potentially an ex-employee. There is a further legal concept that bears mention - this is the Principle of Unjust Enrichment. What it means, very simply, is that "nobody may be enriched at the expense of another". The contract of employment provides (perhaps not in as many words, but certainly by implication) that the employee shall offer his/her services and that the employer shall pay him/her for such services.
If the employee does not provide those services (because of absenteeism) then it is unfair for the employer to have to pay for something that is his contractual right to receive. It is equally unfair for the employee to benefit - by means of being paid - for something he/she did not do in terms of the Employment Contract. Put differently, it means very simply: no work - no pay.
This differs from Common Law in that Statute Law is law that has been legislated by Parliament or some other law making body. Statute Law usually prescribes limits, sets levels and specifies minimum standards, and specifies contractual terms not covered by Common Law. The statutes which concern us are the Labour Relations Act, The Basic Conditions of Employment Act, the Employment Equity Act, the Skills Development Act and the Occupational Health and Safety Act, Wage Determinations, various Industrial Council Main Agreements, Collective Agreements and so on.
The Labour Law Practitioner may also deal occasionally with the Close Corporations Act (which contains special disciplinary procedures for enforcing disciplinary measures against members), the Insolvency Act, the Public Service Act, and perhaps a few others.
So as can be seen, Statute Law is very involved. The difference is this - under Common Law, you could probably enter into an Employment Contract whereby the employee would have to work 15 hours a day, take 10 minutes for lunch, work 7 days a week, get 5 days leave a year, and not be paid for any sick leave, and be fired any time you feel like it. However, because of the protective effect of Statute Law, such a contract would be illegal even if the employee agreed to it.
You cannot enter into any agreement or contract that contains any condition less favorable to any party to the agreement than the corresponding condition contained in any relevant Statute. Any such contract or agreement is unenforceable, as many employers have discovered to their cost. Statute Law in general sets out to protect the employee and ensure that the employer does not take advantage of him/her.
Statute Law is important when dealing with unauthorized absenteeism, because it specifies when an employee may legally absent himself/herself from the workplace, irrespective of any condition contained in the Employment Contract or Company Rules and Regulations.
Company Policies, Procedures and Regulations
This is a set of rules which apply to your own Company only, and may not conflict with the conditions of any Statute unless the Company rule is more favorable to the employee than the corresponding condition in the Statute. For example, the BCEA stipulates a minimum of 15 days paid leave per annum. The Company can give 20 days per annum if they wish, but they may not give only 10 days.
So how do we combat unauthorized absenteeism?
We do it using the tools at our disposal:
Company Rules and Regulations.
There are some important rules to remember:
[a] always record any interviews with offenders in writing.
[b] the onus is on the employee to prove that the absence was justified.
[c] the employee may produce reasons, and a reason may even be valid - but despite being valid, it can still be unacceptable.
For example, if an employee is late every day for a week because the trains are late due to stolen cables, this may well be true - perhaps the cables were stolen, so the reason for being late is valid. But you do not have to accept it as justification for being late and thus excuse the late-coming. The rule is that the Company has certain working hours - how the employee gets to work is his/her problem, not yours.
Absence from Work
Absence where the employee does not turn up for work at all can sometimes be the most difficult type of absenteeism to handle - simply because there can be a host of reasons for this, and you will have to sift out the truth from the B.S. before deciding what action to take. Remember though that the employee must justify the absence.
This type of absence may be due to personal problems - sick wife, sick kids, urgent financial crisis, death in the family or death of a close relative, or some other domestic crisis that requires the employee to stay at home to handle it.
Under such circumstances, the employee should notify you by telephone, by a message delivered with another employee, by a telephone call from a friend to you, by a runner with a cleft stick, or some means. It is very seldom that there is just no means whatsoever of notifying the employer of the absence - the usual excuse (totally unacceptable) is that "there was no telephone." This is nonsense, and must be rejected outright unless the employee lives in Borneo or on top of Mt. Everest.
However, should the employee fail to notify you of the reason for the absence within a reasonable time, the failure to do so only renders the absence more serious - and the employee, if absent for more than 3 days ( in some cases 5 days ) may well find that he/she has been dismissed for desertion. Note also that even if the employee does notify you that he will be absent for the day, such notification does not mean that the absence is now authorized. You may decide to treat the absence as authorized and pay the employee for the period absent, or you may decide to authorize it but treat it as unpaid leave. It will depend on the circumstances.
Whatever happens, the event must be recorded in the employee's file, you must have a short counseling session with the employee (again recorded) and you must follow Company disciplinary procedures, if any. If the reason advanced for the absenteeism is unacceptable to you, then issue a written warning to that effect and make the warning valid for 12 months. The record keeping is vital in the event that the employee becomes a habitual absentee, and you need to dismiss at some future stage. The absence could also be due to some uncontrollable event - heavy rains flood his house, or even the entire village, a tornado or cyclone (not uncommon these days in certain parts of the R.S.A.), roads washed away, telephones out of order, rail strike, etc.
However, with such events you will almost certainly know about them because they will be reported on the radio and T.V., so the reason for the absence is obviously valid and acceptable. Despite this, you still are not obliged to pay the employee - you must decide on that.Remember the principles of no work - no pay, and also "how you get to work is your problem" But be reasonable and fair. For example, there may be other employees who live in the same stricken area, but who did come to work - albeit late. In that case, you would take a more unsympathetic view of any who stayed away altogether.
Unrest, Violence and political stay-away is becoming more infrequent these days - but calls by the Unions for national strikes and stay-aways are not so. A good policy to adopt is that quite simply, any absence because of unrest, violence, political stay-away or national strike or stay-away will be treated as unpaid leave. Deliberate and willful absenteeism is when the employee does not come to work because he just feels like a day off - no other reason. There is usually a pattern, such as the employee is always absent on payday or the day after payday - or is always absent on a Monday or a Friday (not necessarily every Friday and every Monday, but when he/she is absent it is on a Friday or a Monday.)
Willful and deliberate absence is a very serious offence because the employee has deliberately and willfully chosen to ignore his/her contractual duty to present himself/herself for work, and is therefore in breach of contract. This type of absenteeism calls for severe discipline - even to the extent of suspending the employee for say one week without pay, or a final written warning valid for 12 months. Obviously, proper disciplinary procedures must be followed.
Absence after permission has been refused
This does happen - the employee requests to be excused from work the following day or on a particular day, and with very good reason the request is refused because the reason offered by the employee for requesting the absence is not valid.
It may also be that it is vital that the employee be on the job at that time, or that the company may suffer some loss if the employee is not at work. Whatever the case, make absolutely certain that you explain very carefully to the employee why you are refusing his/her request, and use an interpreter if necessary. Then confirm the refusal in writing and place a copy in the employee's file, also recording that a meeting was held, that you explained the matter fully in the presence of xxxxxx witness and xxxxx interpreter.
If the employee does absent himself after refusal (provided the refusal is fair and equitable) then it is a very serious offence which could even result in summary dismissal. The employee can in fact now be charged with unauthorized absenteeism, gross insubordination, and refusing to obey reasonable and lawful instructions. Whatever the case, remember that the employee must justify the absence and in addition, you must hear his story and check all the facts before you impose disciplinary action or sanction.
Imagine the mess you will be in if the employee is able to prove, for example, that Company attendance records have been inaccurately kept, or are not up to date, or even worse - are not kept at all. What if the employee is able to show that he was unavoidably detained in hospital through no fault of his own?
Check the facts and listen to the other side - it is vital
Suspect ill health/sickness.
Employee absence due to ill health or sickness - same thing I suppose - is one of the most difficult types of absenteeism to control - to do so requires very careful record keeping and careful & detailed disciplinary records.
Simply because it is the employee's right to go off sick, and what's more the employee is protected by legislation. The Basic Conditions of Employment Act, which regulates sick leave provisions, describes sick leave as "incapacity" - put differently, the employee is incapable of carrying out his/her contractual obligations because of illness .The Act further entitles the employee to a certain number of days sick leave over a 3 year cycle, it entitles the employee to take the permitted number of days at any time during the 3 year cycle, and imposes only one minor responsibility on the employee - that of being obliged to produce a valid and acceptable medical certificate under certain conditions.
Every employee can take a full two days off work without having to produce a medical certificate, and what's more he can do this repeatedly. Therefore - in the case of the lead slinger - your record keeping of the number of days taken off, what day of the week is habitually taken, and how often advantage is taken of the 2 day provision by the employee is vital to assist you in imposing disciplinary action / sanction.
For example, if the employee takes off more than twice during any 8 week period, you do not have to pay the employee for the third occasion off - this usually discourages a repeat performance, but it may not. If there is a pattern - say always absent on a Friday or a Monday, or on payday, or regularly every 9 weeks (just outside the 8 week rule), then a disciplinary hearing is called for. The employee must be told straight out that his absence due to illness is no longer acceptable, and unless his/her health undergoes a vast improvement, dismissal may result. If handled properly, you can dismiss on grounds of incapacity due to ill health - so the employee's "sickness" will backfire against him/her.
A deserter is an employee who is absent from work for more than 3 days, without notifying you of the reason for the absence, and you can show that he/she has no intention of returning to work. Remember that the intention to desert - the intention not to return to work - must be present. Therefore you cannot dismiss for desertion an employee who has been off sick for 10 days without notification and who returns to work with a valid medical certificate. He had no intention to desert - he was sick. You must be able to prove that you have attempted to contact the absent employee, by telephone, or better still by means of a telegram sent to his last known address.
If an employee does not report for duty without having been granted prior permission to be absent, you are entitled to remove him from the payroll after a reasonable period of time has elapsed. There is no statutory definition of "a reasonable time" but it is generally considered that 3 to 5 days fulfills the definition. Quite obviously, you must follow disciplinary procedures (in absentia if necessary) before dismissing the employee. Equally obviously, if he/she arrives suddenly say after even 3 months absence, he/she is entitled to put his/her case to you - however, you are not obliged to re-employ. Remember that this person is no longer an employee, but rather an ex-employee.
Absence from overtime work
It happens that an employee does not pitch up to work previously agreed overtime. The employee states that because it is overtime, he/she does not have to work it if he/she does not want to, despite having agreed to work the overtime. This is incorrect - where an employee has specifically agreed to work a specific shift of overtime, then that employee is contractually bound to work the agreed overtime.
Once the employee has agreed to work the overtime, it is then no longer voluntary, but becomes a contractual obligation. Disciplinary action is the same as for absence without permission or unauthorized absenteeism.
Q: If an employee arrives for work after the shift has started, can I send him home without pay for that day?
A: Even though the employee is late, he has still tendered his services and to send him home without pay could be viewed as imposing the sanction of suspension without pay without a disciplinary hearing. This could land you in hot water. However, what if the shift begins at 7 am and he arrives at 1 pm? Can he then say "I have tendered my services therefore you can't send me home without pay?"
Certainly not. It is best that you build into the employment contract a deadline - for example, "Should you arrive at work later than 1 hour after commencement of the shift, you will be sent home and you will forfeit that days wages. In all instances of late coming, the principle of no work-no pay shall apply." Then should the instance arise, you can listen to the reasons advanced for the late coming, and make a decision in terms of your disciplinary procedures.
Q: How do we handle the employee who is always late, but always has a real and valid Excuse?
A: A real and valid acceptable excuse does not mean that the late coming is acceptable. Although you may be sympathetic to the circumstances and may even try to assist in some way, the ultimate responsibility to get to work on time rests with the employee. It is his/her problem - not yours. If the employee cannot carry out this contractual obligation - i.e., to be at work on time, then he/she may be in line to become and ex-employee.
Q: If an employee arrives late, can they be made to "work in" the time lost or can I take from overtime hours worked and offset this against any shortage on normal time not worked?
A: The answer is that the employee can "work the time in" but only if he agrees to do so. You can take overtime and offset it against normal time lost, but again only by agreement and on the basis of like-for-like. In other words, if the normal time is say short by 4 hours, and the employee has in fact worked 6 hours overtime (at 1 ½) you can't take 4 hours at 1 ½ and add the 4 hours to the normal time. Remember 4 hours at 1 ½ is in fact 6 hours normal time.
If you calculate correctly, you would deduct 2.66 hours at 1 ½ to make up 4 hours normal time. So if the employee has worked 41 hours normal time and 6 hours overtime at 1 ½, you pay him 45 hours normal time and 3,34 hours at 1 /2. But again, the employee must agree to this. However, experience has shown that the best way is that if an employee has been late during the week, you do not allow him to work any overtime for that week. He must clock out at the end of the shift and go home. In this way, he feels his late coming in a very material way - namely a shortage on his wages for that week.
By paying him normal time worked and then allowing him to make up any normal time shortage with overtime really achieves nothing. The employee in fact gains substantially, because instead of being paid normal rates for the 4 hours short on normal time, he makes up fir it in overtime and is in fact enjoying the benefit of working only 41 hours normal time and thereafter overtime rates apply, instead of having to work 45 hours normal time before overtime rates kick in.
Q: What if the employee is late back from leave and claims he/she was sick?
A: Sick leave rules apply - the employee must justify the reason for the absence.
If a sick note cannot be produced, ask for the name of the doctor or hospital where treatment was obtained. Other wise treat it as unpaid leave or impose disciplinary action for unauthorized absenteeism.
Q: What if an employee requests to work his lunch break and leave early.
A: Strictly speaking, you cannot allow this because you would be breaking the law.
The law requires that the employee have at least a 30 minute break after 5 hours work.
Q: What if the employee arrives at work but is clearly unfit for duty - perhaps with influenza for example :
A: It is clear from legislation that the employee is not only required to present himself for work - he is also required to present himself in a fit condition to do that work.
Therefore if he comes to work too sick to do the job, or smelling of liquor or clearly under the influence of liquor, he should be sent home. Obviously disciplinary procedures can be invoked where required.
Q: What of the employee clocking someone else's card for him with the knowledge of the other person who is absent?
A: Clearly this is fraud and must be handled accordingly. Both parties would be subject to disciplinary investigation, and where justified, disciplinary action and sanction. .
A final word - some case law :
NUMSA and others Vs Free State Cons. Gold Mines : case 1996 (1) SA 422 (A)
" The recommended penalty for absenteeism is :
Namib Wood Industries v Mutiltha and another - case 1992 (1) SA 276 (Nm) A
The employee, a factory manager, had absented himself for an entire afternoon on 3 consecutive days despite having been refused permission to do so. Ruled that the first instance would have justified dismissal, and the dismissal was upheld.
Meerholz v Norman - case 1916 TPD 332
The conclusion was " Where an employer chooses to appoint certain definite hours for work and the employee accepts that contract, then the employer is entitled to require that those hours be adhered to. It is not a requirement that the employer have to show that those hours are necessary for the running of the business. Where the employee fails repeatedly to keep those hours, the employer is entitled to dismiss him."