Law of contract – Absenteeism: 'No work, no pay'

In a recent study of Industrial Court awards made and presented over the years, researchers noted that a majority of dismissal cases that popped up dealt with absenteeism issues.

This was regarded as a little surprising, because it is such an easy disciplinary issue to deal with, even where it is so excessive as to result in a termination.

Most organisations have rules about attendance. Virtually all contracts of employment stipulate attendance rules, hours of work, built-in non-work allowances for permitted absences from work for medical reasons, vacation and public holidays, and those procedures to follow if other variations are required.

Employment contracts themselves commit to an offer of "services" given by the person employed in return for a certain "consideration," which comes in the form of money and fringe benefits.

Absenteeism outside those rules is simply a neglect or refusal to abide by the terms of work attendance agreed upon.

While certain absences may be built into the contract, the principle set out in section 62 (2) of the Industrial Relations Act in relation to time off during strike action, namely, "Nothing in subsection(1) shall be construed as imposing on an employer any obligation to pay for any services of a worker that are withheld as a result of strike action taken in conformity with this part," is consistent with the law of contract and common law, which stipulates that unless the employer has agreed otherwise, the principle of "no work, no pay" applies. This is not rocket science.

Variances must be agreed upon by both parties to the contract. The simplest ones are written or verbal requests for permission for specific lengths of time off from work to be granted, either with or without pay, and without terminating the contract itself.

Where the rules of attendance are broken, as a pattern of behaviour, disciplinary action may result.

Where the rule-breaker promises to improve their attendance and/or timekeeping, and demonstrably does so, given that not all promises are fulfilled, if the promiser has proven themselves a person of trust, there should be no problem.

Forgiveness is never a right. It is a privilege, and in rule-breaking, it will be up to the management to accept the improvement and lessen or cancel the disciplinary action.

In most cases, the decision will rest on the employee’s attitude and record of behaviour.

But that is a truism not always understood by people in the workplace.

In a trade dispute, No 193 and 194 of 1985 between OWTU and Lever Brothers WI Ltd, the union's representative tried to insist that the company cannot unilaterally determine what is an acceptable improvement.

As a general rule, once a bargaining unit is recognised by a majority union, no employer has the right to unilaterally determine what is an acceptable improvement in the incidence of absenteeism or tardiness. The company is wrong to say that management not only has the right but the duty to take action to attempt to persuade appropriate standards of conduct and performance before problems arise which necessitate strong disciplinary action.

The union is saying there are no unilateral rights where a majority union exists; neither the union nor the company has unilateral rights.

This was not untypical of arguments made back in the 1980s, when industrial relations were approached as a fight for power, not as an approach to work towards "discipline, production and tolerance."

The court, which under section 20 (2) (e) of the Industrial Relations Act – the section of the act which sets up the Industrial Court and delineates its functions and its powers – is obliged to take into consideration the necessity to preserve and promote the competitiveness of products of TT in the domestic as well as in overseas markets, a wise provision just as essential today as it was in 1972, when it was drafted.

The court stated in its award, "We begin by expressing our surprise at the extravagance of the language used and the claims made by the union’s representative. He has attempted to eliminate what are understood to be the entrenched rights and prerogatives of the owners and managers of business undertakings.

"It is settled law that a worker may be justly subject to disciplinary action for taking uncertified sick leave…Employers have a right to expect attendance with some degree of regularity…Arbitrators recognise and stand behind the principle that management may discipline for absenteeism.

"Whether a given penalty is upheld depends on a number of variables. Were prior warnings given? What is the reason for the absence? What is the employee's record of attendance? And discipline? Has the employer meted out discipline for this offence consistently?"

That award still stands as a guide for practitioners.