Mathabela v Potgietersrus Platinum Mine Ltd (1997) 18 ILJ 788 (CCMA)

Principle:

It is unfair to dismiss an employee for desertion where the employer itself instructed the employee not to attend work during the criminal hearing against him.

Facts:

An employee was dismissed for desertion, but challenged this sanction as he was away from work pending a criminal case arising out of a robbery at the workplace. The employer has laid criminal charges against the employee.

Extract from the judgment:

The cases deal with a situation wherein the employer does not know why the employee has left and is not reporting for duty. In the present case ... the employee argues that he had been instructed by his immediate senior... not to report for duty until his criminal case had been finalized. If this allegation is correct then the employer knew why the employee was absent and there would be no basis to charge the employee with desertion after he had complied with the employer's instruction.