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.’”’

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.