Labour law allows employers to discipline employees for absenteeism. Item 3 of Schedule 8 of the Labour Relations Act (LRA) states that “Efforts should be made to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings” and that “Dismissal should be reserved for cases of serious misconduct or repeated offences”.
The next logical step after issuing a final warning is dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
Employers often lose CCMA cases because the law is confusing. That is, while Schedule 8 implies that employees may be dismissed after having received a series of warnings, the same Schedule says that, “When deciding whether to impose the penalty of dismissal, the employer should, in addition to the gravity of the misconduct consider... the nature of the job and the circumstances of the infringement itself”.
This means that, even if an employee has already received a final warning, the employer may still not be entitled to dismiss him for being absent again depending on the nature of the job and the circumstances of the lateness. However, the LRA does not state under which circumstances it is acceptable to dismiss employees who repeat offences after receiving final warnings.
In the light of the vague legal provisions the nervousness of employers to dismiss such offenders is justified. Proof that this problem is not merely theoretical is that, since 1998, there have been numerous cases where employees, dismissed for absenteeism, have been reinstated by the CCMA and/or awarded compensation.
The main reason for this is the failure of employers to apply the law based on Schedule 8 and principles developed via case law. Therefore, the discussion of some case law decisions should assist employers in avoiding the legal pitfalls.
In the case of NUMSA obo Damons vs Delta Motor Corpration and Another (2003 2 BALR 180 CCMA) the employee was dismissed for repeated absenteeism which, according to the employer’s policy, rendered him unable to fulfil his responsibilities. The employer maintained that it had fully complied with the Sick Absence Control Policy to which the trade union had agreed.
However, the CCMA commissioner ruled that the employer had not complied with its own policy. The commissioner therefore found the dismissal to be unfair and ordered the employer to reinstate the employee on the same terms and conditions as prevailed prior to the dismissal.
In the case of Krouwkamp vs Tanua Technologies (2002 5 BALR 508 CCMA) the employee was dismissed for having been absent without leave for 4 days. The employer held the disciplinary hearing while the employee was still absent but later offered to hold a new hearing. However, the employee refused this offer saying that she had already been dismissed.
The arbitrator held that the employer had not made a proper effort to contact the employee before holding the first hearing. The commissioner accepted the employee’s evidence that she had been ill and found that the employer had acted too hastily. The dismissal was found to be unfair and the employer was required to pay the employee compensation amounting to 12 months’ remuneration.
In Makholoa vs Rustenburg Platinum Mine & Another (2001 4 BALR 362 CCMA) the employee was dismissed for being absent without leave. He had been booked off on sick leave for three days but failed to attend the night shift immediately following this period of illness. As the employee had already received three warnings for absenteeism before this incident he was dismissed.
However, the commissioner accepted the employee’s version that he had been unaware that he had been assigned to night shift on the date in question. The commissioner therefore decided that the dismissal had been unfair and ordered the employer to reinstate the employee.
The above cases show that, while employees can be dismissed for absenteeism:
lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
Tel: (011) 888-7944
Cell: 082 852 2973
First published in The Star newspaper and the SA Labour Guide website