Mofokeng and KSB Pumps (2003) 24 ILJ 1756 (BCA)

Principle:

In instances of abscondment, and where possible, the employer must establish whether the employee has any intention of returning, invite the employee (if found) to attend a disciplinary enquiry, and determine whether there were justifiable reasons for absence.

Facts:

In this case, an employee was absent for work for three weeks while in prison pending trial on a criminal charge. When released, he reported for duty but was told that his employment had been terminated. The arbitrator found that the employer was entitled, based on its operational requirements and in view of the uncertainty regarding the length of the employee’s absence, to find a replacement to keep production going. However to be fair, the dismissal had to be effected in accordance with a fair procedure.

In instances of abscondment, the employer had to, where possible, establish whether the employee had any intention of returning, invite the employee (if found) to attend a disciplinary enquiry, and determine if there were justifiable reasons for his absence. In this case no enquiry was held and this rendered the dismissal unfair.

This case emphasises the importance of the employer acting on a breach of conditions of employment by the employee, and if appropriate terminating the contract procedurally fairly. The employer should not just take the view that the employee, by virtue of the breach, has terminated the contract .

Extract from the judgment:

9.1 The issue to be determined in this matter is whether an employer is entitled to terminate the services of an employee who is unable to render services as a result of being imprisoned. Abscondment is deemed to have occurred when an employee is absent from work for a duration that warrants an inference that the employee does not intend to return to work. In cases where the employee has absented himself for an unduly long period, and if he/she intends to return to work, the onus is on that employee to proffer a reasonable explanation for his/her absence. The issue in this case is whether the applicant's absence from work as a result of being imprisoned can be accepted as a reason that was beyond his control. The issue is whether there was any fault on his part, entitling the employer to terminate his services.

9.2 It was common cause that the applicant had informed the respondent of his whereabouts. Although it was not known as to when he would be released, the respondent had within two weeks of his absence, decided to terminate his services. The reason for so doing it was submitted, were based on operational requirements, as the respondent was under pressure to find a replacement to keep production going. The applicant had by immediately reporting for duty after his release, indicated an intention to return to work. However, given the respondent's operational requirements (ie, to keep production going) and in view of the uncertainty regarding the applicant's release, it is my view that it was within its rights to find a replacement. The applicant's contention was that the respondent should have found a temporary replacement pending his release and prior to taking a final decision to dismiss him.

9.3 It is now trite that for a dismissal to be fair, it has to be effected in accordance with a fair procedure. Item 4(4) of schedule 8 of the Code of Conduct also provides that in exceptional circumstances, and where an employer cannot reasonably be expected to comply with the guidelines, pre-dismissal procedures may be dispensed with. One of the exceptional cases recognized by the decision in SA Broadcasting Corporation v CCMA & others (2002) 23 ILJ 1549 (LAC) ; [2002] 8 BLLR 693 (LAC), is that the employee concerned cannot be traced in circumstances where he has deserted, that the employee has indicated an intention not to return to work, and his whereabouts are unknown. However, if the whereabouts of an employee are known, the employer is obliged to invite him/her to attend an enquiry. Where the employee fails to attend the enquiry, the employer is entitled hold the enquiry in his/her absence and to decide whether termination of services is justified.

9.4 Emanating from the decision in SABC supra, it is clear that in instances of abscondment, and where possible, the employer must establish whether the employee has any intention of returning, invite the employee (if found) to attend a disciplinary enquiry, and determine whether there were justifiable reasons for absence. In this case, the respondent knew where the applicant was as he had reported his whereabouts. The respondent's contention was that a notification to attend an enquiry was sent to the applicant via Samuel. Such notification was not produced in these proceedings, and it is not known when the enquiry was scheduled for. However, on 8 October 2002, a letter of dismissal was issued. If it is believed that such a notification was issued, it can only be inferred that such an enquiry was to be held prior to 8 October 2002, and at that stage, it was impossible for the applicant to attend as he was still incarcerated. Nevertheless, it was common cause that such an enquiry was not held at all.

9.5 In circumstances where the applicant was unable to attend the enquiry as a result of his incarceration, it would have been expected of the respondent at least to postpone it until such time that the applicant availed himself. In the meantime, the respondent was however still entitled to find a replacement in the applicant's absence. As to how long the respondent was expected to hold the enquiry in abeyance depended on the length of the applicant's incarceration. In this case, the applicant was in jail for three weeks, and had immediately presented himself for duty after his release. At most, it was expected of the respondent to hold an enquiry immediately upon his release to determine whether his absence was excusable. This was even more apposite in view of the fact that the applicant by informing the respondent of his whereabouts and by immediately reporting for duty upon his release indicated an intention to return to work. To the extent that the respondent's decision to dismiss the applicant was precipitous, and further to the extent that he was not afforded an opportunity (despite his request) to be heard when he was released, it needs to be stated that his dismissal was unfair. The applicant had a reasonable excuse for not being at work or for not being able to attend the enquiry. It might be argued that his incarceration had nothing to do with the respondent as it was as a consequence of a domestic matter. However, even if so, he was still entitled to a fair hearing after his release.

10 Relief

10.1 The applicant seeks reinstatement and compensation. He earned a salary equal to R876,80 per week. In considering what the appropriate relief should be, it is crucial also to consider what is equitable and just, and further to take into account the interests of the parties. McGowan had contended that although the applicant's position was semi-skilled, it required a lengthy and intensive training to find a suitable replacement. A replacement has since been employed. However, as it is trite, this fact alone cannot be a basis for denying reinstatement. I have taken into account the fact that the applicant's absence and incarceration was entirely of his own making, that the respondent had gone to great lengths to find a replacement, and further that to reinstate him in the same position would be impractical. Having taken into account these factors, and the provisions of s 193 of the LRA, it is my view, since the termination of the applicant's services was based on the respondent's operational requirements, and further that it would be iniquitous to reinstate him in the same position, such an order would be inappropriate.

10.2 The only other issue to be determined is whether the applicant should be awarded compensation, and if so how much. It has already been indicated that, if anything, the applicant's dismissal was procedurally unfair. Section 194(1) provides that compensation awarded to an employee whose dismissal is found to be unfair either on substantive or procedural grounds, or both, must be just and equitable in all circumstances, but may not be more than the equivalent of 12 months' remuneration. In my view, compensation equivalent to five months is just and equitable.

Award

(a) The dismissal of the applicant was unfair.
(b) The respondent is ordered to pay to the applicant compensation equivalent to five months' salary calculated at F R876,80 x 4,3 x 5 = R18 851,20.
(c) The abovementioned amount shall be made due and payable on no later than 14 August 2003.
(d) There is no order as to costs.