|The absent employee : when & how to terminate
|Author: Charles Kinnear (firstname.lastname@example.org)
|Author affiliated to: ABCOR
Fundamental to any contract of employment is the obligation that rests upon an employee not to be absent from work without justification. In common law, if an employee were to do so, the employer would be entitled to dismiss the employee on notice.
However, in modern labour law, an employer would not be entitled to dismiss an employee for minor absence which caused little or no prejudice to the employer. There are certain procedural requirements that an employer is required to follow prior to substantively and procedurally fairly dismissing the employee.
In this paper we will deal with absence from work in the form of late-coming, absence from a work station as well as absence from the workplace. We will also deal with abscondment/desertion and in the context of all the aforegoing set out when it would be appropriate to terminate an employee’s employment and the procedure to be followed in each instance.
Minor instances of absence from the workplace or workstation, which cause little or no prejudice to an employer, require corrective disciplinary action. Repeated absenteeism, after corrective disciplinary action, will generally justify dismissal.
Absence from the workplace is perhaps the most common form of absenteeism that an employer experiences. This can be the “Monday blues” absence from work or the failure to report for work following a long week-end or immediately preceding one.
Late coming is also a form of absenteeism. It occurs when the employee is absent from work at a time when he or she was contractually obliged to render a service and has no reasonable excuse for their absence.
Isolated incidents of late-coming would generally not justify dismissal. The employer would typically be required to give the employee a verbal warning in respect of late coming alternatively to counsel the employee. If the late coming persists, and with no justification for it, further sanctions would include final written warning and ultimately the dismissal of the employee. In all instances the principle of hearing the other side’s story (Audi alteram partem) ought to be adhered to. The employee ought to be issued with a notice to attend an enquiry the purpose of which is to examine whether there is any justification to the pattern of late-coming. It has repeatedly been confirmed by our courts that the onus of providing justification for the absence rests with the employee.
ABSENCE FROM WORK-STATION
Absenteeism does not only entail a complete physical absence from the work place but may also occur where employees are absent from their work-stations. In this new era of smoke-free buildings, this can occur when employees are constantly away from their work-stations on a “smoke break”.
Similarly to instances of late-coming, an employer would rarely be entitled to dismiss employees who are not at their work-stations during working hours for significant periods. Again, a gradual form of corrective action ought to be put in place in order to correct such Behaviour.
SLEEPING ON DUTY
Sleeping on duty has also been regarded as a form of absenteeism in the form of a person being physically present at work but mentally absent. CWIU v Boardman Brothers (Natal) (Pty) Ltd (1995) 16 ILS (LAC) is a judgment made under the old Labour Relations Act ,1956, the principles enunciated in it are still applicable today.
At the request of its employees who were all night shift workers, the employer agreed to a change in the shift pattern from a five day working week to a four day working week which entailed more hours of work per shift for the employees and, unknown to both the employer and the employees, was contrary to the provisions of the Basic Conditions of Employment Act, 1983 relating to the maximum spread-over times, ordinary time and continuous time. This change was made because employees did not wish to work on a Friday night / Saturday morning and had difficulty obtaining transport in the middle of the night. Pursuant to this change in the shift-pattern, the employer noticed a decline in the night shift employees’ productivity in that they failed to meet their targets. It monitored their performance by means of a video camera which revealed that the employees stopped working during the night and went to sleep in the change room. The employees accordingly faced disciplinary enquiries and were all dismissed. They brought an application alleging that their dismissal constituted an unfair labour practice. The matter came before the Labour Appeal Court. The grounds of appeal were:
- The hours required to be worked were illegal and accordingly the employer could not rely on the employees’ failure to work those hours as a breach of contract;
- It was physically particularly onerous for the employees to work such long hours and it was inevitable, having regard to the time they had available to sleep during the day, that they were not able to last the night without sleeping;
- Another team which also worked the night shift and slept during workings hours was not dismissed and that it was discriminatory to terminate the employees’ services and not those of the other team;
- The production of the employees exceeded that of the day shift whose services were retained; and
- Having regard to the corrective function of discipline, dismissal was too drastic a measure in the circumstances.
The court rejected the third and fourth grounds as a basis for making a finding that the dismissals were unfair labour practices. The remainder of the grounds however found favour with the court which found that the real issue emanating from these three grounds was whether having regard to the fact that the employees were required to work hours which they requested but which were physically onerous and prohibited by law they should have been dismissed because they slept during these hours.
The court found that the employees did not sleep because the hours that they were required to work were illegal. It found that the employees slept because they found the hours they were required to work to be physically too demanding.
It found that although the employees were guilty of misconduct, the nature of their misconduct did not warrant dismissal as they did not dishonestly claim money for time not worked. Furthermore the court found that some form of corrective discipline should have been applied instead of dismissal. In this regard it noted that no warnings or corrective disciplinary measures were taken before the employees were dismissed. In finding that the dismissals were drastic, it took cognisance of the fact that although the sleeping was not in response to the illegality of the hours worked, it offended against one’s sense of fairness that employees were dismissed for sleeping during hours of work which by law were prohibited. Despite it being the employees’ choice to work the hours, the employees were physically not able to work those hours. The court accordingly ordered their reinstatement.
Abscondment occurs when an employee has expressly or impliedly intimated that he or she does not intend to return to work.
By absconding/deserting employment an employee would be in breach of the contract of employment. If normal contractual principles were to be applied the employer would be entitled to either enforce the contract by bringing an application in the Labour Court seeking specific performance, alternatively to accept the breach of contract and cancel it. The question that has arisen for some time in our law is whether the cancellation of a contract of employment because of desertion/abscondment amounts to dismissal. Clearly, if it is not a dismissal, then the termination would not be justiciable in terms of the current labour law regime.
This question has now been settled. In SABC v CCMA & Others (2001) (22) ILJ 487 (LAC) the Respondent employee had been dismissed but subsequently his dismissal was withdrawn. He was orally instructed to resume work but failed to do so. He was of the view that in terms of the agreement to reinstate him he was entitled to wait for a written instruction from the SABC to resume work. Several letters were addressed to him warning him that he was obliged to report for duty. He was finally given an ultimatum that he would be regarded as having absconded if he did not return to work on 5 December 1997. On 12 January 1998 the SABC terminated his services without holding any enquiry into his alleged desertion. The CCMA commissioner found that the applicant’s dismissal was substantively fair but procedurally unfair. He was awarded compensation. On review the SABC’s contention was that it had not dismissed the employee and that the commissioner erred in finding that there had been a dismissal. The SABC further sought to set aside the commissioner’s award in finding that the dismissal of the employee was procedurally unfair. The SABC contended that it was not necessary to afford an employee who deserted a hearing because no dismissal occurred. Alternatively if a dismissal did occur that it was in the circumstances excused from affording the employee a hearing. It placed reliance on item 4 of the Code of Good Practice in Relation to Dismissals which states that:
“In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.“
The Court rejected the SABC’s contention that there had been no dismissal. The Court found that because desertion was not permitted in terms of a contract of employment, it constituted a breach of contract. It is not part of our law that a breach of a contract, however material, brought about its termination. In our law such an act would entitle the other party to acknowledge the repudiation and elect either to terminate the contract because of the breach alternatively to enforce the contract by seeking an order from a competent Court requiring the employee to render services as contractually obliged to do so. It is accordingly not the act of desertion which terminates the contract of employment but the act of the employer who elects to exercise its right to terminate the contract. This termination constitutes a dismissal.
It turned to consider whether an employer should convene a disciplinary enquiry before taking a decision to dismiss for desertion. It was of the view that this would be dependent on the relevant circumstances of each case and the practicality of doing so. It had the following to say about desertion:
“What constitutes desertion is of course a matter of fact. In some instances an unexplained absence for a reasonable period, that is to say, reasonable in relation to the employer’s operational requirements, will establish the fact of desertion. In the instance of an employee who remains away from the workplace and whose whereabouts are not known and who is out of reach of the employer, it is plainly impracticable to impose upon an employer the obligation to convene a disciplinary enquiry before reaching the conclusion that the fact of desertion has occurred and in consequence of which it is entitled in response thereto to elect to terminate the contract.“
“Whether or not an employer should convene a disciplinary enquiry before taking a decision to dismiss, is dependant on the relevant circumstances and the practicality of so doing.“
In the present case it found that since the employee had been within the reach of the SABC and had been in breach of his obligation to tender his services for a period of approximately 2 (two) months and had been placed on terms to return to work. When he failed to respond to the ultimatum to return to work, the SABC should have furnished him with a notice to appear at a determined date and time to show cause why he should not be dismissed by reason of his persistent desertion of his post. The Court found that there was nothing impractical about such a step and in the circumstances the employee’s dismissal was procedurally unfair. He was awarded compensation.
The case was taken on appeal.
On appeal the company persisted with its contention that because the employee had absconded, he was not entitled to a hearing. The court agreed with the Labour Court and the Commissioner’s finding that the dismissal of the employee was substantively fair but found that it was procedurally unfair. It however further found that on the facts, it could not be said that the employee had deserted since it was clear that he always intended to resume work. It pointed out that employees desert their employment only if they do not intend resuming employment. In this particular case, the employee upon receiving the ultimatum to return to work had replied to the latter advising the company that he did not abscond. He advised it that he was awaiting written notification as to when he ought to report for duty and was not prepared to come to work as long as what he perceived at that time to be his victimisation by the SABC persisted. He stated in his response further that he considered himself still an employee of the SABC. In the circumstances the court found the employee should have been charged with absence from work and not abscondment/desertion.
On procedure the court found that since the SABC’s disciplinary code and procedure provided for a disciplinary enquiry on such instances of absence from work, a disciplinary enquiry ought to have been held. This was particularly so since the employee’s whereabouts were at all times known to the company. There was accordingly no reason why an enquiry should not have been convened.
The court found that:
“Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.“
It also agreed with the court a quo’s decision to reject the SABC’s contention that an act of desertion constituted a breach or repudiation of a contract of employment and accordingly does not amount to a dismissal. It pointed out that a breach of a contract of employment does not bring about a termination of that contract. The termination occurs when the employer elects to accept a repudiation and terminates the contract and thereby dismisses the employee. Accordingly whether or not an employer should convene a disciplinary enquiry before taking the decision to either enforce it or terminate it would depend on the circumstances of each case.
Thus both the court a quo and the Labour Appeal Court confirmed that terminating a contract of employment due to abscondment/desertion amounts to a dismissal and accordingly, depending on the facts of each case, such dismissal ought to be preceded by an enquiry.
This approach was also mirrored in SACWU vs DYASI 2001 7D LLR 731 (LAC).
In that case the employee worked at the union’s branch in Newcastle. On 1 October 1995 she was promoted to the post of assistant administrator in Johannesburg. She was not happy in Johannesburg and requested the union’s general secretary to transfer her back to Newcastle.
The employee who had been appointed to her original position was amenable to a cross-transfer but the proposed cross-transfer did not take place. She later became engaged to be married to a man living in Newcastle and again requested a transfer as well as a month’s leave.
She claimed that when she was granted leave she was assured that her transfer required only formal approval and that she was told to report for duty at the Newcastle branch after her leave. However when she reported for duty, her position was filled by another employee. She was advised that if she did not report for duty in Johannesburg, her absence would be treated as unpaid leave. Finally, she was told that her absence from the Johannesburg office was regarded as abscondment. She was dismissed and upon referring the matter to the old Industrial Court, was found to have been unfairly dismissed and the union was ordered to pay her compensation of a year’s salary.
On appeal the Court held that the probabilities were that the union had granted her only two weeks leave for her wedding and not four weeks as she claimed. Furthermore that she had not been instructed to report for duty in Newcastle but in Johannesburg. Her absence at the end of her two week leave amounted to desertion and a repudiation of her contract. By tendering her services two weeks after her leave period had expired and in Newcastle (not in Johannesburg) was a breach of her contract of employment. She had a duty to render services where and when required by her contract and she failed to do so. The Court held that:
“If a party to a contract breaches a fundamental term thereof or repudiates it, the other party can elect to hold the party to the contract or to cancel it. [The union] could have transferred the respondent and not terminated the contract … therefore, it was the appellant who terminated the contract. It thus dismissed the respondent and it was obliged to do so both procedurally and substantively fairly.“
On procedure it found that the union could have afforded the dismissed employee an opportunity to state her case. Its failure to do so rendered the dismissal procedurally unfair.
The dismissal of an employee for absenteeism and abscondment requires a measure of fault on the part of the employee. In both instances employees, of their own volition, failed to abide by the terms of their contracts of employment. The onus of justifying their absence rests with such employees.
As in all dismissals, dismissals due to absenteeism or desertion require a measure of procedural fairness. It is easier to hold a disciplinary enquiry for absenteeism than it is for desertion where the whereabouts of the employee is unknown. However the cases discussed today have provided some guidelines on when and how to terminate an employee’s employment who is absent from work or deserts/abandons their employment.
Minor absences which cause little or no prejudice to the employer require a corrective approach to discipline. Late coming employees or employees who regularly absent themselves from work for short periods of time would be entitled to some form of counselling to ascertain the reasons for the late-coming and/or failure to report for work. The aim is to ascertain whether there is fault on the part of the employee. If there is, corrective disciplinary action ought to take place in the form of verbal warnings, written warnings, final written warnings and finally dismissal. Most disciplinary codes recognise this corrective approach to irregular and non-prejudicial absence from work. More serious instances of absence from work which, depending on the company’s operational requirements, are prejudicial to the employer may justify dismissal. Each case ought to be treated on its own merits.
Desertion on the other hand, requires the employer to infer an intention on the part of the employee, as a result of such employee’s conduct, that the employee has no intention to return to work. Whether this intention on the part of the employee is correctly inferred depends on the facts of each case. An employee who is unable to report for work due to no fault on its part such as imprisonment, cannot legitimately be supposed to have deserted/abandoned work. In this instance our law has long recognised that dismissal would not be due to the employee’s imprisonment per se but that it is because it would be unreasonable to expect the employer to hold the position vacant for a prolonged period of time. The unreasonableness or otherwise of the prolonged absence depends on the duration of the imprisonment and the nature of the employer’s business.
Abscondment / desertion, as stated, is a breach of contract entitling the employer to elect either to enforce the contract or to accept the breach and to cancel the contract. If the employer does the latter, than this election amounts to a dismissal. As in all dismissals, the principle of hearing the other party’s story ought to ordinarily be adhered to. It may however in certain circumstances be impossible for a hearing to be held where the whereabouts of the employee is unknown and the employer has no way of making contact with such an employee.
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