|The absent employee : when & how to terminate
|Author: Charles Kinnear (email@example.com)
|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 co
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