In the recent judgement of Palanga v The Petroleum Oil and Gas Corporation of South Africa (2021) ZALCCT 48, the applicant referred a matter to the Labour Court for review as he claimed that his dismissal was substantively unfair. The Labour Court had to determine whether the respondent was bound to investigate the alleged incapacity of the applicant and whether the respondent had to exhaust all the alternatives short of dismissal due to the alleged “incapacity”. In other words, was there any obligation on the employer to change the disciplinary hearing related to misconduct to an incapacity hearing due to alleged illness?

It was submitted by the respondent that the applicant had a history of unauthorised absences from his workstation, negligence for not following the proper procedure and the lack of punctuality. The applicant was instructed to return to work on the 15th of July, which he failed to do. He only returned on the 1st of August, after which the notice to attend a disciplinary enquiry was served on him. The disciplinary enquiry was postponed on two occasions. However, it finally proceeded on the 25th of August, whereby the applicant pleaded guilty to the charge of being absent from work without authorisation.

During the disciplinary inquiry, in mitigation, the applicant submitted that individuals at his employer were attempting to eliminate him, which had affected him psychologically. He accused senior management of turning a blind eye when he asked for intervention and perceived himself to be a victim of a conspiracy by certain team leaders and shift supervisors who were abusing their authority to advance their own objectives.

It is important to note that the applicant did not provide any explanation as to why he did not come to work after being instructed to do so. However, out of great caution, the chairperson ordered that the applicant attend a clinical psychologist to report whether there was any psychological condition affecting him, which may impact his time and attendance. He further required that a recommendation be made to management to correct his behaviour if such a condition exists.

The appointed psychologist submitted a report that indicated that the applicant did have an underlying depressed mood. However, this did not affect his ability to perform his duty or time and attendance thereof.

After careful consideration, the chairperson found that the medical report was not a valid defence for the applicant’s absence. In the absence of any clear finding of incapacity, the chairperson concluded that the applicant did not view his employment relationship as important, and his behaviour would most likely be repeated. As a result, he recommended the sanction of dismissal.

At the CCMA, the convening commissioner concluded that the chairperson correctly considered the medical report from the psychologist for possible reasons of his absenteeism and did not excuse the applicant from reporting for work. However, the commissioner found that suspending the applicant without payment, pending the outcome of his disciplinary hearing, was procedurally unfair and ordered the employer to pay the applicant four months for the suspension.

In the Labour Court, it was held that the employer bears the onus to justify the fairness of the dismissal. If the employee believes that an ulterior motive lies behind the reason for the charge, the employee can lead evidence to show that the dismissal cannot be justified on the basis that the dismissal is for an impermissible reason, under section 187 of the LRA. Likewise, if an employee charged with misconduct believes that their actions can be explained as something wholly or partially beyond their control because they are suffering from a physical or mental incapacity, the employee can lead evidence to show that they are not at fault or cannot be held accountable for their condition and actions.

The court noted that the employer is not obliged to eliminate all possible explanations for what appears to be deliberate and willful misconduct of an employee in circumstances where other possible explanations were not previously known to the employer or were not apparent.

In the guidelines for dismissal related to misconduct, there is no similar obligation placed on an employer to conduct a full-scale investigation into what underlies an employee’s misconduct. In this case, the court took note that the applicant had the opportunity to pursue the possibility of obtaining a clear psychological diagnosis. He also had the opportunity of advancing psychological reasons as a defence to the charge of misconduct and lead evidence in support thereof. The applicant failed to prove any actual incapacity defence but instead tried to ambush the employer into taking another course of action in the form of an incapacity enquiry.

In light of the above, an employer is not obliged to conduct a full investigation when an employee claims incapacity during a disciplinary enquiry relating to misconduct. The onus is on the employee to provide justifications and defences for the charges being laid against him.

However, we must always consider that there is a fine line when considering what is deemed to be fair within Schedule 8 of the LRA. We would thus always advise our members to make contact with their local CEO office for professional advice.

Article by: Christie de Villiers
Dispute Resolution Official – Polokwane