Introduction
When an employee calls in sick on or around the date of a scheduled disciplinary hearing, is it a genuine need or a tactic to delay the disciplinary process?
Unfortunately, a trend has emerged where accused employees attempt to frustrate ongoing disciplinary proceedings through deliberate medical leave, making it difficult for employers to navigate the fine line between legitimate sick leave and its potential misuse.
Addressing what recourse is available to an employer in such a situation requires first examining the two fundamental rights that maintain balance within the workplace ecosystem.
Employer’s Right to Maintain Discipline vs Employee’s Right to be Heard
Employee discipline plays a vital role in maintaining order, productivity, and adherence to company policies and standards in the workplace. Its absence would not only negatively affect production and service delivery but would also lead to the deterioration of the overall workplace environment. Therefore, it comes as no surprise that an employer’s right to maintain discipline in the workplace has been firmly established in our jurisdiction.
Equally recognized is an accused employee’s right to be heard, which affords them the opportunity to present their version of events and defend themselves against potentially unjustified accusations. Without it, workplace environments would become breeding grounds for abuse of power and arbitrary disciplinary action.
While both rights are important in ensuring fairness in the workplace, there are instances where the two come into conflict.
Waiver or Forfeiture of Employee’s Right to be Heard
The old (but gold) case of Phirinyane v Spie Batignolles 1995 BLR 1 (IC) (“Phirinyane”) is arguably the leading authority for the principle that an accused employee’s right to be heard is not absolute and that an accused employee can waive or forfeit their right to be heard through their conduct.
The Industrial Court in Phirinyane held that the following constituted conduct that could warrant the loss of an accused employee’s right to be heard: (i) deserting the workplace; (ii) displaying unruly behaviour or blatantly abusing the employer when the employer is trying to discuss, convene, or hold a disciplinary hearing; and (iii) refusing to attend a scheduled disciplinary hearing after being given adequate notice. (N.B.: This is not an exhaustive list.)
The golden thread that runs through the above-mentioned conduct is that it involves behaviour that actively frustrates or obstructs an employer’s ability to conduct a fair disciplinary process, such that the employer cannot reasonably be expected to hold a hearing.
Directing employers on what to do when such conduct arises, the Industrial Court in Phirinyane advised that a disciplinary hearing cannot be dispensed with altogether. Instead, an employer must proceed with the hearing in the accused employee’s absence. This ensures that the employer can satisfy itself that the alleged misconduct had been committed and that the accused employee was the one who committed it.
In this way, due process and fairness are maintained throughout the disciplinary proceedings, despite the accused employee’s attempts to frustrate them.
Continuing a Hearing Without the “Sick” Employee
Considering the above principles, the following question arises: When an employer suspects that an accused employee is using sick leave to avoid a disciplinary hearing, can the employer proceed in the employee’s absence?
To answer this, an examination of local case law on the subject is imperative.
Steven Dennis Mangenela v The Attorney-General and Another CACGB-094-23 (“Mangenela”)
In Mangenela, the Court of Appeal clarified that if an employee repeatedly presents sick notes that conveniently align with hearing dates, this pattern may indicate an attempt to frustrate the disciplinary process. In such cases, the employer is entitled to disregard the sick notes and proceed with the hearing in the employee’s absence.
The Attorney-General & Another v Thatayaone Donald Disang CACGB-002-24 (“Disang”)
The Court of Appeal held that sick notes must be considered by the employer in light of the employee’s general conduct during the disciplinary process or from the time the employee became aware of the possible charges.
The employee had submitted sick notes coinciding with the scheduled dates of the disciplinary hearing a total of six (6) times. The repeated submission of sick notes was coupled with the employee’s initial reluctance to proceed with the hearing—first through an extension request to enable him to adequately address the allegations (which was granted), and second through a request for further particulars on the allegations (which particulars were known to him and did not affect his ability to address the allegations).
The Court of Appeal found that the employee’s conduct was indicative of a strategy to frustrate the disciplinary process and that the employer was consequently well within its rights to have the disciplinary hearing proceed in his absence.
Portia Mosadi v The Attorney-General CACGB-101-21 (“Mosadi”)
The employee faced, among other charges, two counts of theft, misappropriation, or wilful dishonesty against the Government. She was informed that the hearing would be held on the 9th of November 2017 and failed to turn up on that day on account of ill health, having presented a sick note.
The hearing was rescheduled to the 30th of November 2017, and subsequently to the 6th of December 2017, the employee having failed to show up both times for non-health-related reasons. The hearing was rescheduled to the 13th of December 2017, with the chairperson of the disciplinary committee cautioning the employee that this would be the last postponement. The employee still failed to appear without explanation. The hearing proceeded in her absence, and she was found guilty. She was accordingly notified of the outcome, and that mitigation was scheduled for the 21st of December 2017, which she also did not attend.
It was only after the fact that the employee claimed to have been on sick leave between the 13th and 21st of December 2017 but had not presented a sick note to that effect. She argued that her consequent dismissal was procedurally unfair, as her right to be heard had not been fulfilled.
The Court of Appeal, having considered the employee’s claim of ill health and her general conduct from the time she became aware of the possible charges, held that the employee was more likely than not in good health at the time. The claim of ill health being a possible ruse, the employer was justified in conducting the hearing in her absence.
Francistown Knitters (Pty) Ltd v Nyepetsi [2019] 3 BLR 159 (CA) (“Nyepetsi”)
Here, the employee was invited to a disciplinary hearing scheduled for the 17th of October 2014 and was unable to attend due to ill health, having presented a sick note. The hearing was subsequently rescheduled for the 27th of October 2014. On that date, the employee was still unable to attend due to ill health and sent a letter to his employer, along with a copy of the doctor’s note indicating his inability to attend.
Suspecting that this may be a strategy to avoid disciplinary action, the employer proceeded with the hearing in the employee’s absence and found him guilty.
The Court of Appeal held that it could not fault the Industrial Court’s finding that the employee’s dismissal was procedurally unfair, as there was no clear evidence that the employee was not unwell and that the doctor’s note was untruthful.
The Court of Appeal in Disang, reviewing the circumstances in Nyepetsi, stated:
“In the case cited, sick notes fell within a space of one month, and there was no indication of a pattern in the conduct of the employee to evade the conduct of a fair disciplinary hearing.”
Conclusion
The above decisions suggest that where an employee is absent due to illness, the safer course for the employer may be to postpone the hearing within reason. If the employee continues to submit sick notes that align suspiciously with hearing dates or shows a pattern of behaviour suggesting an attempt to evade the process, the employer may then proceed with the hearing in the employee’s absence.
What is within reason ultimately depends on the facts and circumstances of the case, and the outcome will largely depend on the court’s attitude towards the specific evidence presented—hence the variability in the judicial decisions above.
Notwithstanding the fact that the cases do not provide a definitive answer, the following key takeaways offer practical guidance to employers navigating this complex disciplinary scenario:
- Repeated submission of sick notes that coincide with scheduled disciplinary hearings, especially when combined with other delaying tactics, may indicate an attempt to frustrate the process (Mangenela, Disang, Mosadi). In such cases, the employer can justifiably proceed with the hearing in the employee’s absence.
- Sick notes should be considered in light of the employee’s overall conduct during the disciplinary process. If the employee’s behaviour—such as repeated requests for postponements or unwarranted delays—suggests a deliberate strategy to avoid the hearing, the employer may proceed after reasonable postponements (Disang).
- Employers must always act reasonably and fairly. If there is no clear pattern of abuse or sufficient evidence to doubt the authenticity of the sick notes, proceeding without the employee could result in a finding of procedural unfairness (Nyepetsi).
- Employers are not required to postpone hearings indefinitely. After a reasonable number of postponements and clear signs of bad faith, the employer may proceed with the hearing (Mangenela, Disang).
- Courts look at the employee’s entire behaviour from the time they become aware of the charges, including previous reluctance to engage or failure to provide timely explanations for absences (Mosadi, Disang).
