However, when it is clear that the employee is utilising sick leave as a means of stalling or otherwise hindering the disciplinary process, the employer is entitled to question the employee's bona fides and act accordingly, even proceed with the enquiry in absentia.
In the case of Solidarity obo Van Vuuren v Volkswagen SA[2003] 10 BALR 1191 (CCMA) the employee challenged the procedural fairness of the disciplinary process because the outcome of her disciplinary enquiry was given in her absence while she was on sick leave. The disciplinary enquiry also proceeded without the employee leading evidence in mitigation of sentence. Having regard to the facts, the court held that it was probable that the employee had applied for sick leave to delay the disciplinary process.
The court found that the employer had been patient over an extended period while making numerous reasonable requests that the applicant submit mitigating factors and provide a medical reason as to why she was not able to adhere to such requests. The employee had failed to respond to the employer's requests to present mitigating factors. The outcome of the disciplinary enquiry was also assessed by the court and it was held that, owing to mitigating factors being considered in the employee's absence, the decision to dismiss the employee was procedurally fair.
Employees who are genuinely ill can have their disciplinary enquiry postponed in order to allow them an opportunity to present their case. However, the courts will consider what is fair to both parties.
If the employer can provide facts showing that it is likely that the employee is abusing his or her sick leave, then the employer may be entitled to proceed with the disciplinary enquiry in the absence of the employee. In order to avoid risk, the employer must have clear evidence in this regard.
