Absenteeism
In the matter of MURRAY AND ROBERTS CEMENTATION (PTY) LTD V AMCU OBO DUBE AND OTHERS (JA96 / 2022) [2023] ZALAC 26 (18 OCTOBER 2023), the complexities of workplace absenteeism and disciplinary procedures were highlighted.
The employee, an artisan assistant electrician employed since 17 January 2018, was dismissed on 7 November 2019, following a disciplinary hearing. He was charged with poor work attendance, specifically being absent without permission from October 29 to November 4, 2019, and allegedly misusing sick leave by taking it before and after weekends or rest periods.
During the disciplinary hearing, the employer presented evidence of the employee’s absences on 14, 21, 28, 30 October, and 4 November 2019 and testified that the employee had previously been issued written warnings for unauthorized absences.
When the matter reached arbitration, the arbitrator expressed doubts about the clarity of the charge, noting ambiguity as to whether it represented a continuous period of absence or specific dates. The arbitrator pointed out that the employer’s code of conduct did not explicitly provide for an offense of absence without permission for five consecutive days or any five days over a period.
The arbitrator ultimately found the employee’s testimony unreliable and concluded that the employer had proven a breach of the rule on absence without permission. Combined with the two prior written warnings, the arbitrator deemed dismissal was justified.
On review at the Labour Court (LC), it was argued that the arbitrator had admitted hearsay evidence and found the employee guilty of misconduct not stated in the charge sheet. The LC agreed that the arbitrator had committed a gross irregularity by misinterpreting the reason for dismissal.
On appeal, the Labour Appeal Court (LAC) agreed with the LC’s assessment of the hearsay evidence but disagreed on its exclusion. The Court found that while the arbitrator did not expressly consider the law on hearsay evidence, his decision to admit it could not be regarded as unreasonable.
The LAC had an issue with the interpretation of the charge sheet. It held that neither the disciplinary hearing chairperson nor the arbitrator was at liberty to interpret the charge in a manner unsupported by an ordinary, grammatical, and contextual reading thereof. The Court emphasized that the inquiry should have been whether the employee had absented himself for five or more continuous days without permission.
Consequently, the LAC set aside the arbitrator’s award on two grounds. First, the charge sheet did not contain a dismissible offense under the code of conduct, and the employer did not establish absence without permission for five or more consecutive days. Second, the arbitrator committed a gross irregularity by failing to consider the evidence as a whole and misinterpreting the reason for dismissal.
In dismissing the appeal, the LAC affirmed that the charge sheet should have been interpreted to require consecutive absences to constitute a valid dismissible offense.
This case underscores the importance of precise charge formulation and adherence to established codes of conduct in disciplinary proceedings.
J Goldberg