In South Africa, the concept of “no-fault unauthorized absenteeism” refers to situations where an employee is absent from work without authorization, and this absence is not due to any fault of the employee, such as illness or other legitimate reasons.
LEGAL FRAMEWORK:
1. Labour Relations Act (LRA)
The LRA governs most aspects of employment relationships, including absenteeism. Unauthorized absenteeism can be grounds for disciplinary action, but the specific circumstances are always considered.
The principle of “progressive discipline” often applies, meaning the employer should first attempt to correct the behaviour through warnings and counselling before proceeding to more severe measures like dismissal.
2. Employment Contracts and Company Policies
Employers typically outline absenteeism policies in employment contracts and company handbooks. These documents usually specify the procedures for reporting absences and the consequences of unauthorized absenteeism.
HOW TO INVESTIGATE UNAUTHORIZED ABSENTEEISM:
Unauthorized absenteeism without a valid reason can be treated as misconduct. Employers are generally required to investigate the reasons for the absence and consider any explanations provided by the employee before taking disciplinary action.
- Investigation: Determine the reason for the absence.
- Communication: Engage with the employee to understand their side.
- Warnings: Issue verbal or written warnings as appropriate.
- Disciplinary Hearing: If the absenteeism continues, hold a disciplinary hearing.
- Dismissal: Only consider dismissal if the absenteeism is severe and repeated, and all other steps have been followed.
Employees have the right to fair treatment and to present their case if they believe the absence was justified. Employees can refer disputes to the CCMA if they feel they were unfairly dismissed or disciplined.
Understanding these aspects helps both employers and employees navigate issues related to absenteeism in a manner consistent with South African labour law.
Here are some examples of “Absence without fault” situations:
1. Medical Emergencies:
Example: An employee has a sudden, serious illness or injury requiring immediate medical attention or hospitalization, making it impossible to notify the employer in advance.
Handling: Upon return, the employee provides a medical certificate to justify the absence.
2. Family Emergencies:
Example: A close family member is involved in a serious accident or suffers a sudden illness, necessitating the employee’s immediate presence and care.
Handling: The employee can explain the situation to the employer and provide relevant documentation if required.
3. Transportation Issues:
Example: The public transport system experiences a significant breakdown or delay, or the employee’s private vehicle breaks down in a remote area without access to communication.
Handling: The employee should inform the employer as soon as possible and provide proof of the incident, such as a repair receipt or a report from the transport authority.
4. Natural Disasters or Extreme Weather Conditions:
Example: Severe weather conditions like floods, storms, or earthquakes prevent the employee from traveling to work.
Handling: The employee can provide news reports or official warnings as evidence of the situation.
5. Political Unrest or Strikes:
Example: Political protests, strikes, or civil unrest disrupt public services or create unsafe conditions for travel.
Handling: The employee can present news articles or official advisories to justify their absence.
6. Legal Obligations:
Example: The employee is summoned for jury duty, appears as a witness in court, or is detained by law enforcement for reasons unrelated to their own misconduct.
Handling: The employee should provide official documents like a court summons or a police report to support their absence.
7. Unexpected Childcare Issues:
Example: A child’s school closes unexpectedly, or the regular caregiver is suddenly unavailable, leaving the employee with no immediate alternative for childcare.
Handling: The employee can explain the situation to the employer and, if possible, provide evidence such as a notice from the school or a doctor’s note from the caregiver.
8. Death of a Family Member:
Example: The sudden death of a close family member necessitates the employee’s immediate absence for funeral arrangements and support.
Handling: The employee can provide a death certificate or obituary notice as proof of the situation.
In all these cases, communication with the employer is key. While the absence is without fault, the employee is typically expected to notify the employer as soon as reasonably possible and provide any necessary documentation to explain the absence. Employers are encouraged to handle such situations with empathy and understanding, considering the exceptional nature of these circumstances.