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Dismissed for one day’s absence while on a final written warning

When an employer loses the end of its patience with the conduct of an employee, it is often just a small straw that breaks the camel’s back and puts an end to the employment contract. That much was obvious in the matter of Malimba v Commission for Conciliation, Mediation and Arbitration and Others (JR1594/18) [2021] ZALCJHB 2 (23 January 2021).

Prior to his dismissal, Malimba was employed as a dealer at Sun City. He was dismissed for being absent from duty without authority on 27 January 2018 when he was on a valid final written warning for absenteeism.

While he was on the gaming floor, he had to wear his staff ID card which was required in terms of the Gambling and Licence rules. When he didn’t have it, a manager instructed him to go home and to fetch his card, and thereafter return to work.

He neither reported for duty the next morning, nor did he contact his employer.

The employer viewed his absence in a very serious light. His absence meant that there was now a staff shortage and as a result the gaming tables which were allocated to him could not be opened which led to a loss in revenue.

On his version he started looking for his staff ID card as soon as he got home. When he couldn’t immediately find it, he recalled that he left it in his wife’s vehicle which had been taken in for repairs in Rustenburg after it was involved in an accident. That meant that he needed time to recover it. He understood this time to be similar to having been suspended from duty.

When the applicant returned to work with his card two days later he continued to work as normal for the best part of six weeks before he was told to complete leave forms for the two days when he was not at work in January 2018. The rule was that an employee who was absent and had not provided a persuasive reason for such absence, would forfeit a day’s pay for each day that he was not at work.

The employee refused to sign the leave forms, and was subsequently dismissed when he was found guilty of unauthorised absenteeism.

The Commissioner upheld the dismissal after finding that the employee’s version was improbable, and that he had contravened a workplace rule.

The applicant took the matter on review to the Labour Court.

The applicant denied that he was absent, arguing that he was sent home and told not to come back until he found his ID card. His version was that when he couldn’t immediately find it, he recalled that he left it in his wife’s vehicle which had been taken in for repairs in Rustenburg after it was involved in an accident. That meant that he needed time to recover it. He understood this time to be similar to having been suspended from duty.

The court held as follows at paragraph [22]:

“At no point was the Applicant charged with not producing his ID Card or losing     that card. It cannot therefore be for the Applicant to choose which offence he should have been charged with. The primary consideration is whether the employer had as correctly pointed out by the Commissioner, discharged the onus placed on it, to prove that the reason for the dismissal was fair.”

And at paragraph [25]:

“In the end, discipline being a management prerogative, it  was within the Employer’s rights to deal with the offence in question as it deemed fit in the light of it being a repeat offence, obviously with due regard to  the considerations of fairness.”

The importance of this judgment is that while an employee is on a final written warning a repeat offence of the same misconduct, may – depending on the facts – very well result in a dismissal.

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