Desertion – or Abscondment – and the Right to be heard.

 
We all know that generally speaking, when an employee is dismissed, he has the right to be heard - he has the right to state his case. This applies even when a dismissal takes place in absentia - when the employee appears at work, is still has the right to state his case even know he has been dismissed.

I came across an interesting case the other day - involving an employee who was dismissed because he made an application to take annual leave, the application was refused, but the employee - despite having been told that his application to take annual leave was refused, still went ahead and took his annual leave.

Evidence was led by the respondent employer that the applicant had applied for annual leave in accordance with procedure, but that his application had been refused and he had been telephonically informed of this refusal. Further evidence was led to show that another employee in the same establishment had tried to discourage the applicant from proceeding on annual leave. Further evidence led by the respondent was that the company procedure entailed the employee to complete an application for annual leave form, which had to be officially approved and signed by management before the leave could be taken.

The applicant was assisted at the arbitration by his union. The applicant's case was that since he commenced work with the respondent, he had always taken his leave in January of each year.  The applicant stated further that in the past, he had never been required to wait for official approval before proceeding on leave.  He stated that completing of the application for annual leave form, was sufficient because annual leave had never been refused.

Whilst the applicant was on annual leave, the respondent sent him a telegram instructing him to return to work immediately. The applicant stated that at the time he received a telegram, he was busy packing to proceed on annual leave, and he never read the telegram until a few days later.

He said he was not in the least concerned about the content of the telegram because he firmly believed that he was entitled to take his annual leave, and he was under the impression that it had been approved. The union stated that the dismissal was procedurally unfair because the applicant had not been informed of any verdict of guilt or innocence, that he had not been afforded an opportunity to state his case or plead mitigating circumstances, and furthermore the dismissal was substantively unfair because there had been no valid reason to dismiss him. 

The union stated further that the applicant had not been informed that is application for leave had been refused, and that in previous years the applicant had always merely completed the required form, and then proceeded on annual leave without waiting for any form of approval.  The union contended further that even if approval was required, this rule had not been consistently applied. The applicant stated that he went on leave because he firmly believed he was entitled to do so.

The outcome of this whole issue was that it was unreasonable of the applicant not to read a telegram, which would have alerted him to the fact that he was absent on leave without permission. The arbitrator found further that the applicant had decided that he was going to proceed on leave, whatever the cost and that the applicant's action in doing that amounted not only to a breach of contract, but also to a gross insubordination - this based on the fact that he ignored the content of the telegram, which was a clear and lawful instruction to return to work. The applicant ignored it.

Thus when the applicant returned to work ,the employer had already accepted his repudiation of the employment contract. The respondent was entitled to conclude that the applicant had no intention to continue with his contract of employment, and the respondent terminated the contract accordingly.

The applicant in this case was told that he could not go on leave but he was determined to take the leave and he did so. The employer issued an ultimatum in the form of the telegram, for him to return to work or face dismissal. By ignoring this ultimatum to return to work the applicant aggravated his misconduct and clearly displayed his intention not to return to work. The arbitrator concluded that because of the applicant's repudiation of the employment contract which was accepted by the employer, the dismissal was found to be procedurally and substantively fair.

An interesting aspect of this case is that the employee, upon his return to work, was not afforded an opportunity to state his case - he was merely told that he had been dismissed. This shows that periods of unauthorised absenteeism from the workplace need not necessarily be confined to treatment merely on the fact of "unauthorised absenteeism." The implications can go much deeper, involving a repudiation of contract by the errant employee, as well as charges of gross insubordination, justifying dismissal.

(SACCAWU obo Fortuin / Lewis Stores (CCMA) case EC 10889. 1999)

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