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Sunday, January 1, 2012
Do not pass Go

Employers are at times plagued by the question of what to do about employees who are absent from work. Do you discipline while they are away? And what do you discipline them for? The general trend seems to be to discipline for unauthorised absence, abscondment, desertion or other charges along similar lines.

Dismissal for incapacity has been proffered as an acceptable alternative, especially where misconduct cannot be proved by the employer. An example of such a case would be where the employee’s absence is not voluntary, eg incarceration. This was the case in NUM & another v Samancor Ltd (Tubatse Ferrochrome) & Others(unreported), which made it all the way to the Supreme Court of Appeal. The employee concerned was unable to report for duty due to the fact that he was in jail. The employee was dismissed after being absent from work for 10 days. He referred an unfair dismissal dispute to the bargaining council and the arbitrator found the dismissal to be substantively and procedurally unfair because the employer had failed to give reasons why the contract had to be terminated after only ten days of absence and no proof had been given that the employment relationship had been irreparably damaged at that point. The Labour Court upheld the award of the arbitrator. However the Labour Appeal Court found in the employer's favour on the grounds that the arbitrator had made an error in classifying the matter as misconduct instead of identifying it as incapacity. The LAC failed to make a finding on whether or not the reasoning of the award was so defective that no reasonable decision maker would have come to the same conclusion, as is required in reviews.
When the matter was referred to the Supreme Court of Appeal, the Court acknowledged that an arbitration award is reviewable not only on grounds in terms of Section 145(2) of the LRA but also where the award is so defective that no reasonable arbitrator could have reached the same conclusion. What is more interesting for the present purpose is the fact that although the SCA upheld the appeal, it still agreed with the Labour Appeal Court’s classification of this type of absence as a form of incapacity. The classification of absences of this nature as a form of incapacity was also confirmed by the CCMA in the case of Mamabolo Protea Coin Group (Pty) Ltd (2011) 10 BALR 1044 (CCMA) in which the Samancor judgment was relied upon as authority. It may therefore be prudent for employers to consider incapacity hearings as opposed to pursuing dismissals for misconduct when faced with similar types of absenteeism. By Sanelisiwe Nyasulu of Garlicke & Bousfield Inc.

Copyright © Insurance Times and Investments® Vol:25.1 1st January, 2012
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