It is easy to decide to convene dismissal proceedings for proved dishonesty or gross insubordination. But what can an employer do for conduct such as late-coming, absenteeism, sleeping on duty and abscondment?
Minor instances of absence from the workplace or workstation, which cause little prejudice to the employer, require corrective disciplinary action. Repeated absenteeism, after corrective disciplinary action, will probably 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 to work or following a long weekend.
At the bottom end of the scale is late coming. This is a form of absenteeism because the employee is absent from work when he or she is contractually obliged to render service. If there is no reasonable excuse for their absence, steps may be taken. Isolated instances of late-coming would generally not justify dismissal. A sympathetic employer would begin with counselling to find out whether there are family or other circumstances causing personal difficulties for the employee and if something can be done to help.
Persistent late coming would however require the employee to be given a verbal warning. If the late-coming persists notwithstanding the warning and without any justification proved by the employee further sanctions would include a final written warning and ultimately the dismissal of the employee. In all cases discussed in this paper where dismissal is the possible result, an employer is not entitled to dismiss the employee without certain procedural requirements and ensuring that the dismissal process is fair. Among other things the employer would be expected to listen to the employee’s side of the story although the burden of proving justification for any absence rests with the employee.
A similar problem is absence from the workstation. In this new era of smoke-free buildings, this can occur when employees are constantly away from their workstations on smoke breaks. An employer would rarely be entitled to dismiss employees who are not at their workstations during working hours for significant periods. Again, a gradual form of corrective action ought to be put in place in order to give the employee an opportunity to correct the behaviour.
Another form of absenteeism which would be dealt with in this manner would be where the employee is physically present at work but mentally absent for instance, sleeping on duty. The employer dealing with a problem such a sleeping on duty would have to ensure that the working hours and conditions of the employees are lawful. Employees have been reinstated in the past where, although guilty of sleeping on duty, the work hours were too long and accordingly prohibited.
A more serious form of absenteeism is abscondment when the employee has expressly or impliedly intimated that he or she does not intend to return to work in breach of the contract of employment. The labour courts have held that the cancellation of a contract of employment because of desertion/abscondment amounts to dismissal. In SABC v CCMA (2001) (22) ILJ 487 (LAC) an employee had been dismissed for failing to return to work after being ordered to do so after a dismissal had been withdrawn. The SABC contended that it was not necessary to afford the employee who deserted a hearing because dismissal had not occurred.
The court found that desertion is a breach of the contract of employment. A breach of contract, however material, does not automatically bring about its termination. It is not the act of desertion that terminates the contract of employment but the act of the employer who elects to exercise its rights to terminate the contract after notice to the employee requiring the employee to return to work. This termination therefore constitutes a dismissal. Because it is a dismissal the employer should if possible convene a disciplinary enquiry.
This may not be possible because the employee remains away from the workplace and their whereabouts may be unknown or the employee may be out of reach. Nonetheless procedures have to be followed in order to terminate the contract. If the employee’s whereabouts are known the employee should be given notice of the dismissal proceedings and should be invited to show cause why he or she should not be dismissed. If this is not done the dismissal will be found to be procedurally unfair and will not be upheld. The court found that where an employer has an effective means of communicating with the employee who is absent from work, the employer has an obligation to give an effect to the rule of fairness requiring the employee’s side of the story to be heard before the employer can take the decision to dismiss.
Thus, as in all dismissals due to absenteeism (in all its forms described above) and desertion a measure of procedural fairness is required. Counselling may be appropriate where there is little prejudice to the employer and a possible good reason for the conduct. The aim is to ascertain whether there is fault on the part of the employee. If there is fault, corrective disciplinary action ought to take place in the form of verbal warnings, written warnings, final warnings and finally dismissal. Most disciplinary codes recognise this approach. Each case has to be treated on its own merits however.
Whether desertion justifies dismissal depends on the reason for the employee not reporting for work. If there is no fault on the part of the employee (for instance the employee is in prison) there is no intention to desert or abandon work. Dismissal maybe possible because it would be unreasonable to expect the employer to hold the position vacant for a prolonged period of time whilst the employee served a sentence in jail. It would still remain a question as to how long is unreasonable in the context of the employer’s business and the nature of the work done by the employee.
The most unacceptable thing to do, and commonly done, is to assume because of the employee’s absence that they have intentionally breached the contract and that the contract is at an end.
Joe Mothibi is the labour director at Deneys Reitz (www.densysreitz.co.za).