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We are all aware that employers should have rules and regulations in place to regulate the conduct of their employees on the workplace, and at times even off the workplace.
The old rule - that every case is unique and that circumstances differ from case to case - still applies.
In Adams / Impala Platinum Mine [2004] 12 BALR 1510 (CCMA), the applicant was dismissed for being absent without leave for five days. His house had been burgled on the final day of a previous period of authorised sick leave and he claimed that he had to stay at home to attend to the consequences of the burglary.
At that time, the applicant was on a final warning for alcohol induced absences and the respondent had launched an incapacity enquiry to establish whether the applicant was fit to continue work. He was dismissed after having been found guilty of gross misconduct, and in having been absent without permission for five days and in having failed to notify senior management concerning his whereabouts.
For six weeks prior to this five-day absence, the applicant had been booked off as medically unfit to work for what was described as major depression. The applicant contended that his home was burgled on the last day of this sick leave and he was obliged to take the time off in order to attend to the consequences of the burglary.
The applicant also had a final written warning for similar misconduct, which at that time was occasioned by the applicant's abuse of alcohol. The applicant had a history of alcoholism and depression that had resulted in absences from work and that had prompted the employer to initiate a process of investigation into the applicant's capacity to continue work.
The applicant also contended that he had in fact been dismissed before the disciplinary hearing was even held. The arbitrator found that the employer had simply committed a clerical error by entering the wrong date of dismissal on the applicant's record of service and in a letter to the pension fund.
Other documents, such as the notice of discharge to the payroll office, the UIFcard, and other documents, including the final payslips, all indicated the date of dismissal correctly, and in support of the fact that the date of discharge on the applicant's service record was a clerical error.
The applicant also stated that the decision to dismiss was a pre-decided issue, because when he returned to work he found that his telephone had been disconnected, his chair appropriated by a secretary, his computer replaced with another one, and that he was no longer on the e-mail list. The employer explained that this was simply because the applicant was not at work, and this explanation was accepted by the arbitrator.
Regarding the substantive unfairness of the matter, it was found that the applicant did not have permission to be absent during the five day period. The applicant maintained that his absence was justified because of the burglary, and he maintained that his absence had been approved after the event by the employer.
The arbitrator found that the applicant was guilty of the misconduct of being absent for five days without authority. Regarding the appropriateness of dismissal as a sanction, it was noted that the applicant was dismissed for being absent without permission as well as for failing to inform senior management of his whereabouts.
In determining this, the arbitrator raised the question of whether or not the employee's contract had the effect of destroying, or at least seriously damaging, the employment relationship to the extent that it would be intolerable to continue that relationship. The arbitrator noted that the applicant's failure to make any serious attempt to contact his senior management to explain the reasons for his absence, displayed a rather "cavalier attitude" towards his obligations as an employee and towards his employer.
It was also noted that the applicant had a long history of unauthorised absences, also associated with failure to inform management of the reasons for the absence. Weighing up all this against other factors, the arbitrator decided on the balance that dismissal was not an appropriate sanction for the applicants offence of failing to inform management of his whereabouts in these circumstances.
It was therefore ruled that the dismissal was substantively unfair. Because of the applicant's previous disciplinary record the arbitrator found that he was unable to award a reinstatement but felt that the applicant was entitled to some compensation for the substantively unfair dismissal.
It one of the main reasons for this finding was that the arbitrator found that the respondent had in effect condones the applicant's unauthorised absence through the decision of one of its senior managers, and he stated that were it not for this he would have found the dismissal to be substantively fair.
The applicant was awarded an amount equal to four months remuneration as compensation.
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