Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on workplace bullying. We also look at three cases: the first deals with desertion or abscondment. The second looks at the consequences of resignation. The third looks at when it is appropriate to conduct a process leading to dismissal that is less formal than a conventional disciplinary hearing.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Recent cases
When sick leave becomes desertion
A recent case illustrates the employer’s difficulties in acting fairly when employees appear to have deserted or absconded.
The employee, a security officer, was dismissed for absconding from her job. After being away from work for a few days. she was instructed to report at a particular site starting from the next day. Because she fell sick on that day she did not report for work but attended the local clinic for medical attention. She sent the medical certificate she received from the clinic to the employer through a fellow employee. The employee was subsequently sent a letter indicating that she was dismissed because she had absconded.
The case of the employer was that it has a computer system which automatically dispatches a telegram when an employee was absent from work for more than four days, indicating that he or she had absconded. Because the employee failed to report at work for four days, she received a telegram. On the same day the manager issued the letter indicating that the employee should report for duty at the particular site on the following day, failing which desertion procedures would be invoked. A disciplinary hearing against the employee was conducted in her absence. She was advised of her dismissal in a letter.
Fair or unfair?
The employee was re-instated at arbitration, and the employer unsuccessfully attempted to challenge this on review. The Labour Court, in Khulani Fidelity Services Group v CCMA (LC JR 783/07), decided the case according to this understanding of desertion:
Desertion consists of absence without authorisation by the employer, with the intent to remain permanently away from employment. The intent can generally be inferred from the circumstances of the absence of the employee. The period of absence and the surrounding circumstances can serve as an indication of the intention not to continue with the contract of employment.
Applying this understanding of desertion to the facts of the case, the Labour Court supported the finding of the CCMA commissioner who had held that the employee could not be said to have had the intention not to return to her employment in the light of her submission of the medical certificate which explained her absence from work. The employee had also reported for work and also informed one of her seniors about the reason for her absence.
Earlier cases have stressed the need for an enquiry. In Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA) an employee was absent for work for three weeks while in prison pending trial on a criminal charge. When released, he reported for duty but was told that his employment had been terminated. The arbitrator found that the employer was entitled, based on its operational requirements and in view of the uncertainty regarding the length of the employee’s absence, to find a replacement to keep production going. However to be fair, the dismissal had to be effected in accordance with a fair procedure. In instances of abscondment, the employer had to, where possible, establish whether the employee had any intention of returning, invite the employee (if found) to attend a disciplinary enquiry, and determine if there were justifiable reasons for his absence. In this case no enquiry was held and this rendered the dismissal unfair.
Perhaps the most important learning from the Khulani case, is to get the charge or allegation of misconduct correctly framed. There seems little point in an employer ever charging an employee with ‘desertion’, given the complexities of proving the employee’s ‘intention to remain permanently away from employment’. Far better from an employer’s perspective would be to charge an employee with unauthorized absence from work.
Resignation: can an employee decide when to leave?
Consider these facts:
The employer was granted the licence to operate the national lottery for a fixed period of 7 years, which expired on 31st March 2007. In anticipation of the possibility of the non-renewal of the licence at the end of the seventh year the employer entered into fixed term contracts of employment with most of its employees; their contracts were to expire on 31st March 2007.
During September 2005, the employer resolved to reward those of its employees who would still be in its employ as at the date of the expiry of the licence by paying them a loyalty bonus. The purpose of the loyalty bonus was to serve as an incentive to those of the employees who remained in the employ of the employer notwithstanding the uncertainty of whether or not its licence would be renewed at the end of 31st March 2007.
It came to the attention of the employer, during February 2007, that two employees were contemplating accepting an offer of employment with the employer's competitor in the bid for the licence after 31st March 2007. They both accepted the offer but tendered their resignations on different dates. The first employee tendered his resignation in writing on 26th February 2007, the effective date of such resignation being 31st March 2007. The second employee tendered his resignation in writing on 19th February 2007 with the effective date of such resignation also being 31st March 2007.
After receipt of both letters of resignation, the employer adopted the view that the notice of termination was 4 weeks, strictly applying the terms of the employment contracts. The employer accordingly responded to the letters of resignation and notified them that their employment would terminate on the 19th March 2007 and 26th March 2007 respectively. The employees regarded this as a dismissal by the employer and therefore referred a dispute concerning unfair dismissal to the CCMA.
At the arbitration hearing the employer argued that the employees had unilaterally and voluntarily terminated their services and that there had been no dismissal. The employees on the other hand argued that they were each entitled to give written notice in which they could indicate the date on which they wished their notice period to expire which in this instance according to them would have been 31st March 2007. They further argued that by requiring them to leave its employ before that date, the applicant had dismissed them. The arbitrator ruled in favour of the employees and found that they had been unfairly dismissed. The employer took the decision on review to the Labour Court, which overturned the award.
The Labour Court, in Uthingo Management (Pty) Ltd v Shear & others (LC JR 2007/07) held that if an employee resigns from employment, the CCMA will lack jurisdiction to hear a dispute unless there was a dismissal as defined by the LRA. The court in this case applied a literal interpretation of the termination clause in the contracts of employment (which stated a 4 week notice period), and decided that the resignation letters were clear and unambiguous and that the resignations had been accepted by the employer. The employment contracts accordingly terminated 4 weeks after the notices of resignation were given, and the court found there was no dismissal.
Whilst this case turned on the jurisdictional point of whether or not there had been a dismissal, the consequences of this decision are significant. Employees planning to resign need to be careful about the timing of the event in case they are required to leave before they hoped to. Where an employee resigns giving more than the required notice and notifying the employer of his/her intended last date of employment, the employer may be entitled to require the employee to end employment at the end of the required notice period, even where this is sooner than the employee’s intended last day of employment.
We worry about the legalistic consequences of this decision. Employees may have to careful to resign on a precise date, in order to ensure continued employment until the intended date of resignation. This may prevent employees giving more time to the employer to plan for the future. It is also interesting that the precise wording of the resignation letter and the termination clause in a contract of employment may lead to a different outcome. For example, if the notice clause in the contract states “not less than (our emphasis) 4 weeks’ notice…”, it may be open to the employee to state the precise date on which the employee proposes that employment ends. This may lead to a different interpretation about when the employment contract terminates.
When is an informal hearing acceptable?
The Labour Court and employment law specialists have for some time now been saying that employers have fallen into a trap of holding very formal, legalistic ‘criminal law’-type hearings, instead of the less formal hearings suggested in the Dismissal Code of Good Practice in the LRA. But most employers are reluctant to deviate from strict procedures in case an arbitrator later finds that there was procedural unfairness. The case of Ngutshane v Ariviakom (Pty) Ltd t/a Arivia.kom & others (LC J1067/08) appears to sanction alternatives to the standard disciplinary enquiry.
Here are the facts:
After the appointment of a new CEO, the employee, the human resources executive, did not get along with him. She lodged a grievance against him for being racist and for humiliating, undermining, harassing and victimising her. The CEO responded to the board that she was a non-performer.
The employee was offered a separation package, which she declined. She was offered a facilitated process but the employee objected to the proposed facilitator. The board then decided to resolve the matter according to its grievance procedure. Following a forensic accounting investigation into allegations of irregularities and fraud, the board resolved to suspend the employee pending further investigation.
On the basis of three letters critical of the employer and an IT Web article, the remuneration sub-committee of the board informed the employee that it believed that she was incompatible with the employer’s aims and direction and that no purpose would be served by submitting a finding on her grievance. The board had delegated the sub-committee to deal with her matter. The sub-committee was to decide whether, on the common cause facts, she had irreparably damaged the employment relationship and whether it should terminate her employment. The sub-committee invited the employee to make representations to it by a specified date.
The employee’s attorneys informed the employer that she considered the procedure to be an attempt to dismiss her without following a lawful and fair process before a properly constituted disciplinary enquiry. She declined the invitation to submit representations to avoid her dismissal. The sub-committee later informed the employee that it decided to terminate her employment summarily. The procedure adopted in making that decision was the subject of the review in the Labour Court.
The court held the following: “In circumstances where an employee's misconduct is manifest, common cause or not in dispute, a less formal process than a full disciplinary hearing will suffice. In those circumstances an employer's invitation to an employee to make representations is eminently reasonable and fair. In conceiving the notion of effective dispute resolution, the LRA does not prescribe a painstaking process of convening an elaborate disciplinary hearing for every dismissal. In appropriate circumstances, an invitation to make representations satisfies the audi alteram partem rule. Where an employee declines the invitation, s/he cannot thereafter complain about not being heard.”
This judgment offers flexibility in appropriate cases, although in our view this approach does not suit cases in which evidence is needed because facts are disputed. But it does show that there are alternatives to the standard formal hearing, that will be accepted by the Labour Court in appropriate circumstances.
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Bruce Robertson
April 2009
Copyright: Worklaw
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