Calculating leave

A January industrial relations issue that has never ceased to puzzle me is the practice that human resource departments use in their HR metrics, which are refreshed every year.

An example would be the calculating of sick leave.

Another example would be in calculation of a vacation allocation particularly in relation to length of service, which has peculiarities of its own, and will be the subject of another article.

Collective agreements do not necessarily make the calculations easier or more logical.

Collective agreements – and I stress the term agreements in this context – frequently limit sick leave allowable to a defined number of days per year, such as 15 days leave annually.

When December 31 is crossed with firecrackers, frightening dogs and babies, the next morning, metrics in employees’ files start anew at one, wiping out the calculations from the entire previous year.

Why? If an employee who is a habitual absentee has used up 12 of those fifteen days with covid19 for example, and those days are certified, that is it, the next day of sickness shows up on each employee’s attendance file as the first for the year.

The organisation starts counting days of absence again and his/her file will record "one” absence for the year although they may have been absent for the whole of December.

But that was last year – 14 (more days) to go.

There are also those employees who either never took a day of sick leave for the year and those who were forced to go on mandatory leave to protect others from becoming ill – those who were kept away from work because of a weird government edict that stated that if your co-habitant family member tested positive for covid19 you would also have to go on two weeks sick leave. But their file will not reflect anything habitual about their absenteeism.

"Only one day for the year" is the new cry.

Was this a guideline that will apply to the upcoming virus attacks the World Health Organization keeps forecasting?

Now is the time for employers who have not yet drafted their virus policies to start to do so.

I know during the covid19 pandemic, workers who claimed they lived with large families, all of whom worked, and each sibling became serially ill, one after the other with covid19.

2024 was a stressful year in my area and a lot of members of the stressed-out population resorted to alcohol as a stress-reliever.

Actions have consequences, however, and as Sparrow commented, "Drunk and disorderly, always in custody."

Some people overdo it. When they end up with a DUI charge, they miss work.

"I was hung-over" is not regarded as an acceptable or reasonable excuse for missing work and you don’t get a medical certificate for it.

However, Prof Norman Selwyn, a well-known author and law lecturer at the University of Aston in Birmingham, UK, where they have the same problem with attendance that we often have, in his industrial relations textbook told us: "If the performance of the contract of employment is rendered impossible by some intervening event, then it will be termination by frustration, not by dismissal."

In European countries, the Winter solstice or Beltrane is often used as a plea in a way similar to how Carnival is used here.

Selwyn’s book, The Law of Employment, goes on to say: "Frustration can only arise where there is no fault by either party (for example) where accident or illness prevents the employee (or employer) from performing the contract."

Where there is fault by one party, for example conduct that leads to imprisonment, this is "repudiatory conduct" not "frustration," as Sparrow could testify.

Then it is up to the party that suffers the loss, to accept the repudiation and the conduct and to keep the contract open or, alternatively, to terminate the contract in instances where the repudiatory conduct is regarded as serious and the person, having been charged with being "drunk and disorderly, and always in custody" is sent to prison. In such cases, it would be rare indeed for the dismissal to be categorised as being "unfair."

The question is now being asked is if that plea may also apply to instances where an employer fails to pay wages due to unavoidable accident, such as the collapse of a building or a rig, resulting in destruction by fire or loss of equipment or goods, or massive extortion or gang theft, although, as far as I know, the latter plea has not been tested in Court.

In the former instance, it is entirely up to the employer, if he/she wishes to accept the conduct, return the employee back into employment and not terminate.

But having accepted it, they cannot subsequently deny that acceptance and use it as a reason to terminate the contract.

Would the same principle apply to an employer’s failure to honour their obligations under the employment contract under what is known as "force majeure?"