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You are in : Case Law >
Mthethwa and Capitol Caterers
Dismissal: employees cannot "dismiss themselves"
Wed, 25 Jul 2007 11:03
Case No. FS5879-06
Award Date: 17 January 2007
Commissioner: M van Aarde, Commissioner
Subject: Repeated Late-coming and Absenteeism
The applicant was dismissed after a period of absence. He claimed the dismissal was procedurally and substantively unfair. The issue related to when an employee can be dismissed for absenteeism.
Summary of Facts:
The respondent did not attend the arbitration.
The applicant was dismissed after he had been absent from work for about two weeks. The applicant, a diabetic, claimed that he had been hospitalised after suffering a serious illness. He also alleged that his wife had contacted his employer to inform them of his illness and upon returning to work he had handed a medical certificate to his supervisor.
The respondent had advised the applicant that he dismissed himself due to his absence.
Summary of Award:
The Commissioner made the following findings:
There is a clear a distinction between absenteeism, abscondment and desertion.
Absenteeism could be divided into (1) late coming, (2) absence from the workstation/post and (3) absence from the workplace itself for short periods.
The longer the period of absence, the more justified an employer will be to terminate the contract.
Brief absences from work rarely warrant dismissal at first instance.
Employers generally treat absenteeism on a progressive scale when imposing penalties.
Dismissal, as a final sanction, is normally justified only if the employee fails to heed the final warning however, in such cases, it is still incumbent on the employer to prove that the final absence did in fact amount to absenteeism.
The elements of absenteeism are (1) the employee must have been absent from work contra to his/her work schedules or roster; (2) the employee has no reasonable excuse for his or her absence; and (3) in terms of some codes/contracts of employment, the employee has failed to timeously inform the employer of the reason for his or her absence.
Some employers, like the respondent, make the common fault to argue that an employee can dismiss themselves; this approach is legally incorrect.
Mgobhozi v Naidoo  3 BLLR 242 (LAC) is authority for the proposition that a medical certificate is hearsay evidence in the absence of an additional statement by the medical practitioner and an employer is legally justified in scrutinizing the wide and vague symptoms/reasons contained in the medical certificate.
The Commissioner found that the respondent had failed to observe the basic requirements set out in Schedule 8 of the LRA and noted than an employer cannot merely dismiss its employees at will/without observance of these procedural requirements and without sound reason. The Commissioner held that there was no evidence to suggest that the applicant abused his sick leave or otherwise had no intention not to return to work after his sick leave had expired. The dismissal was held to be procedurally and substantively unfair. The applicant was reinstated and an order made that he be compensated for all lost remuneration. There was no order as to costs.