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Article 46/2022

What are the principles governing frequent absenteeism due to illness, so formulated by the labour court in General Motors SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2018) 39 ILJ 1316 (LC)?

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The labour court summarised the aforesaid principles, dealing with incapacity dismissals based on frequent absenteeism for illness, as follows:

‘[12] Given the applicants grounds for review, it is also necessary to summarise, in brief terms, the legal principles applicable to sick absence. In AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC); [1995] 9 BLLR 1 (LAC), the Labour Appeal Court said the following:

“It seems to us that the company, having accepted the authenticity of the medical certificates, 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 and General Reinsurance Co of SA Ltd (1992) 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 the 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 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 other employees; and the employee’s work record and length of service.’”’

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?