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Bulletin

It Was Just One Day!

Fasken
Reading Time 3 minute read
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In the case of Litha Malimba v Sun International Management Limited and Others[1], the Labour Court was faced with deciding whether an employee’s failure to report for duty for a single day warranted a dismissal.

The brief facts of the matter are as follows:

  • Mr Litha Malimba was employed as a dealer.On 26 January 2018, Mr Malimba reported for work without his staff card.He was then requested to go home and return to work with his staff card in his possession the following day.
  • On 27 January 2018, Mr Malimba failed to report for duty and did not inform management of this.The employer’s rule in respect of absenteeism provided that when an employee is unable to report for duty, such an employee must notify the employer timeously to enable the employer to make alternative arrangements.
  • As a consequence of failing to report for duty and not informing management of his whereabouts, Mr Malimba was charged with absenteeism and subsequently dismissed. Dissatisfied with this decision, Mr Malimba referred an unfair dismissal dispute to the CCMA challenging the fairness of his dismissal.At the arbitration proceedings, Mr Malimba accepted that he had not called management to advise of them of his absence.His reasoning was that he did not report for duty as he was acting in accordance with instructions that he should not come back until he had his ID card, and thus there was an implied permission for him to be absent.
  • The Commissioner found that if Mr Malimba’s allegation that he was told not to report for duty until he had his card with him was, in fact, true, he still had a duty to call management prior to his shift, on 27 January 2018 and advise that he was not going to report for duty due to being unable to find his ID Card.He however elected not to call management, an act which satisfies the element of fault, a requirement which needs to be present when dealing with misconduct based on absenteeism.
  • The Commissioner concluded that Mr Malimba’s contention that he had merely obeyed instructions by not reporting for duty or that he had implied permission to be absent to be improbable and therefore ought to be rejected.
  • In respect of sanction, the Commissioner took note of the various disciplinary warnings and the final written warning that remained valid as at the time of this particular infraction and found that corrective action taken against Mr Malimba had not yielded desired results in the past.It was in the light of these considerations, that the Commissioner found that there was no basis for him to believe that Mr Malimba ought to be given another chance and a deviation from the sanction of the dismissal.
  • Pursuant to being unsuccessful at the CCMA, Mr Malimba launched a review application at the Labour Court.

Before the Labour Court, Mr Malimba argued that his dismissal was not the appropriate sanction and was unreasonable considering the nature of the misconduct he committed.  The court dismissed the review application.  In its analysis of Mr Malimba’s argument, the court took note that the offence of absenteeism is an offence which requires fault on the part of the employee and in this case Mr Malimba failed to report for duty as instructed by his employer.  In addition to that, Mr Malimba failed to inform his employer of his absence.  The court also took note of the fact that it was not Mr Malimba’s first offence relating to absenteeism.  He was on a final written warning for absenteeism at the time of this offence.

It would seem that in light of this case that absenteeism is considered an offence that may, depending on the facts of each individual case, warrant a dismissal.  This is even if the employee has been absent for only one day without permission.  The employer has the prerogative to deal with employee’s misconduct as it deems fit and in line with its disciplinary code and/or policy.

 



[1] JR1594/18 (decided 23 January 2021)

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