Case law has, for some time now, established laid down procedures and requirements which must be followed when an employee absconds and the employer knows the whereabouts of the absent employee.
In circumstances where an employee absconds, deserts or sis simply absent without leave, employers frequently erroneously conclude that the missing employee has dismissed him or herself; nothing could be further from the truth. It is not possible for an employee to dismiss themselves; only employers can initiate dismissal.
To begin with, it is precisely for these kinds of cases, amongst many other good reasons, why an employer should know and maintain an employee’s personal information including their residential and/or postal address. There are times of course when employees move residence and do not inform their employer of this fact, but it is the employee not the employer who is negatively affected by this, as the employer is only ever expected to communicate with an employee at the address given to them by the employee.
So, if the employer corresponds with the employee at an outdated address, the employer cannot be held liable.
The primary case relied upon in directing employers as to how to address a scenario wherein an employee absconds is South African Broadcasting Authority v CCMA (2002), quoted recently in a Labour Court judgment addressing the question of, inter alai, dismissal on grounds of absence – Jammin Retail (Pty) Ltd v Mokwane & others (JR 2784/09).
The Jammin Retail Labour Court judgment unsurprisingly made reference to the SABC case in outlining the obligations employers have when contemplating the dismissal of deserters. This judgment quoted the SABC which held 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 (always afford the other party an opportunity to defend themselves) 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”.
Put simply, this means that when an employee goes absent, and especially when the employee fails to communicate with the employer, the employer must attempt to find the employee. This is normally undertaken by corresponding with them at the address they have provided the employer; there is a presumption that this is the correct address and that registered mail to this address will be received by the employee.
A written notice to attend a disciplinary inquiry for the absence ion question should be posted registered mail to the employee inviting them to the inquiry.
If they do not attend, the inquiry may ordinarily be held in the employee’s absence as the employer has afforded the employee to state his or her case, but they have waived their right to do so by not attending.
I was posed a genuinely interesting question by a colleague last week. The scenario was as follows; if in a disciplinary hearing chairperson X, after delivering a verdict, becomes incapacitated, or even dies, prior to hearing mitigating and aggravating factors and selecting a sanction, can a new chairman (chairman Y) take over and address the question of sanction selection?
To begin with, it may not be too problematic to hear the case afresh if it is a relatively short matter with few complexities. But what if the verdict was the culmination of many days of evidence wherein the merits of the case are somewhat complex?
In such circumstances, the complete rehearing of the case could be unpalatable for either or both parties. This may be complicated by the challenge in recalling witnesses, especially if they are not employed by the employer. In addition, in the event of an external chairman, it is quite possible that chairman X was paid a handsome fee for his/her services, prior to their incapacitation. The notion of incurring a duplication of fees for an external chair may challenge the most liberal of employers.
So what does one do in these circumstances? At face value, there appears to be two distinct options. Either rehear the case afresh, or appoint a new chairman Y to complete the hearing from mitigation to sanction selection.
Rehearing the case has additional risks. What if chairman Y arrives at a different verdict to chairman X? Yes, the labour dispute resolution channels (CCMA etc) are available to bring the case to a head, but differing verdicts would none the less throw a spanner in the works in all likelihood, especially if chairman X found the employee not guilty and chairman Y found the employee guilty.
Would that entitle the employee to one more hearing (with chairman Z) to make it the best of three?(!)
After pontificating over this for some time, including mulling over it with two chums, a Senior CCMA Commissioner and a respected member of the Bar, we three wise men concluded that in the case of a chairman being required to abandon a lengthy case post guilty verdict and pre-sanction, there is no reason why a new chair cannot be appointed, with certain provisos.
To begin with, the new chairman (Y) should review the disciplinary hearing transcript to assess the merits of the original verdict. If s/he concludes that the guilty verdict seems unjust, the case should be reheard afresh.
If however the newly appointed chairman (Y) concurs with the original guilty verdict of chairman X, the original guilty verdict should be confirmed, and the new chairman (Y) should proceed to hear mitigating and aggravating factors as per normal and select an appropriate sanction in accordance with the normal sanction selection guidelines and principles.
The Labour Relations Act (LRA) makes it perfectly clear in section 187(1)(f) that a dismissal is automatically unfair if the reason for the dismissal is “that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including but not limited to … gender, sex (and) sexual orientation”.
Automatically unfair dismissals are the workplace equivalent of a heinous crime; very unfair dismissals if you like. Automatically unfair dismissals are considered to be so deplorable that they have a maximum compensation threshold of twenty four months remuneration versus 12 months compensation for ordinary unfair dismissals.
In Quinton Atkins v Datacentrix (Pty) Ltd [JS02/07], the Labour Court was called upon to review a dismissal by an employer of an employee who had informed the employer that he wanted to undergo a gender re-assignment process (sex change).
After an offer of employment had been made to the employee, which he accepted, he informed his new employer of his sex change plans. The employer was less than pleased with this news, and deemed the employee to have committed an act of gross misconduct in advising the employer of his sex change intentions during his employment interview. The employee was dismissed 24 hours prior to commencing his employment with the Respondent.
More precisely, the employer decided that the employee’s non-disclosure amounted to a repudiation of the employment contract, which it accepted as they no longer required his services.
Fortunately for the employee, he had not resigned from his previous place of work at the time, and therefore continued his employment with that employer.
However, he did refer his dismissal on grounds of his planned sex change to the CCMA and ultimately the Labour Court on grounds that, inter alia, his dismissal was automatically unfair and amounted to unfair discrimination as provided for in the Employment Equity Act.
The Respondent argued that the employee did not divulge that he intended undergoing a gender re-classification process, when he had an opportunity to do so during his interview, and that this omission constituted a serious case of misrepresentation which amounted to dishonesty.
The Court held that the employer had not defended the case on the basis that it had discriminated against the employee fairly, but rather, that the employee had a duty to disclose his intentions to undergo a gender-reclassification process during his interview.
The Court concluded that the only inference that can be drawn from the facts is that the employer would not have employed the employee if he had disclosed his true intentions during the interview process. Continuing, the court held that “There was simply no legal duty for the applicant to have disclosed what his intentions were. It was simply none of the respondent’s business that he wanted to undergo the process.”
The employee was awarded compensation equivalent to five months remuneration as he had seamlessly continued employment with his previous employer.