Mhlongo v South African Revenue Service (JA3/16) [2017] ZALAC 15 (16 February 2017)

Principle:

An employer cannot be faulted for dismissing an employee in the absence of the employee where the employer has used the agreed methods to communicate with the employee.

Facts:

An employee was arrested at her workplace on allegations of corruption. It was alleged that she demanded and accepted payments from prospective or fixed term contract employees to secure their employment with her employer.

She was absent from work from then on; she alleged she was suspended but this was disputed by the employer. She was then notified that her services had been terminated by SARS after she failed to report for duty. Unsuccessful attempts had been made by HR to have the letters hand delivered at her place of residence. The letters were eventually delivered via a speed service, and proof of the said deliveries was furnished to SARS by the service provider. The letters called upon the employee to immediately report for duty or inform the employer of her whereabouts and the reasons for her absence from work. The employee claimed that she never received the letters.

The employee then launched an application in terms of the BCEA to the Labour Court inter alia (a) to declare the decision to suspend and subsequently dismiss her to be unlawful; and (b) to declare the failure by the employer to follow its disciplinary code and procedure, a breach of the terms of the employment contract between them.

The Labour Court dismissed the application on the grounds that the employee's case, properly construed, was a case of unfair dismissal as contemplated in the LRA and, as such, the Labour Court had no jurisdiction to entertain the dispute. As it was an unfair dismissal dispute it had to be referred to the CCMA for arbitration.

On appeal to the LAC it was held that her dismissal was fair even though it was completed in her absence because the employer had complied with the contract of employment in trying to contact her to attend the hearing.

Extract from the judgment:

(Waglay JP)

[25]   The appellant's case is premised upon the Code, particularly clause 10.2, which provides:

'No employee may be dismissed, demoted or suspended without pay for misconduct, without being granted a formal disciplinary hearing as contemplated in this Disciplinary code and procedure unless the holding of a disciplinary hearing is made impossible by the employee by failing to attend the hearing for no valid reason, or the employee indicating clearly and unequivocally that he/she is not prepared to participate in the disciplinary hearing.'

[26]   For purposes of this judgment, I am prepared to accept that the Labour Court erred and that the Code, including the quoted clause, is applicable and is a term of the appellant's employment contract. But the clause is of no assistance to the appellant, because the evidence in this Court, with regard to the appellant's suspension, is mutually destructive. Since the appellant was seeking final relief in the Labour Court on motion, it is the respondent's (employer's) version which must be accepted when there is a genuine dispute of fact. All there is in the papers filed in the Labour Court, is the appellant's allegation that on the date and time of her arrest, she was told by Seshoka that she was suspended with immediate effect and that he confiscated her mobile phones, laptop and access card. These allegations are denied by her employer. The appellant's argument that no credence should be placed on the employer's evidence because it made no sense for the police to confiscate her access card, is without merit. There is no basis to come to this conclusion without any supporting facts. Her further argument that the employer's failure to respond to her attorneys' letter of 20 April 2009 made the employer's version improbable, as the employer sought to avoid dealing with the issues raised in the said letter, is again without any basis. There are no grounds upon which one can draw such an inference. The fact that there is no response to a letter does not make its contents valid, particularly when there is other evidence to show a contrary position.

[27]   The employer points to the fact that if the appellant was in fact suspended on 31 March 2009 and not required to report for duty, she would not have provided medical certificates to the effect that she was unfit to report for work until 17 April 2009. Her explanation that the doctor had done this of his own volition is difficult to comprehend or accept. Furthermore, the fact that her employer wrote to her threatening her with dismissal if she did not return to work, and a report from Seshoka, eight days after she was arrested, calling on the employer to suspend the appellant, makes the employer's version far more probable. In the circumstances, the appellant will not be able to satisfy the Labour Court that she was indeed suspended.

[28]   The onus is upon the appellant to satisfy the court about the fact she alleges to be correct. Here at best for the appellant, since there is no basis to reject either of the versions presented on affidavit, the appellant has failed to discharge her onus. Anyway, events have overtaken the need to deal with the issue of suspension. If breach of contract is established with respect to her suspension, she cannot get reinstatement for that reason, because she has since been dismissed for failing to return to work when she was required and was obliged to do so.

[29]   Insofar as the appellant relies on the above quoted clause from the Code to claim that the employer breached the term of the agreement by dismissing her without giving her an opportunity to state her case, such reliance is also misconceived. How is an employer to give a notice about a misconduct hearing to an employee who fails to come to work or respond to a letter calling her to return to work, or explain why she is unable to do so? The employer in its correspondence called the appellant to return to work or explain why she remains absent under threat that she will be dismissed. The appellant failed to respond. The employer gives details on its attempts to serve the letters by hand and also that those entrusted to deliver the letters by hand spoke to neighbours etc. The employer then tried to serve the letters by registered post and finally utilised the services of Speed Service. As against this there is no explanation from the appellant. She does not state whether she was informed by her neighbours about her employer seeking her, or whether she received the registered mail slips at all, or whether she received the letters from Speed Services. There is no dispute that the address to which the correspondence was sent was correct. Other than for a bold one-liner that she did not receive the correspondence from the employer, there is no further explanation from her for that. In these circumstances the employer cannot be faulted for dismissing the appellant, particularly, since one of the terms that regulates their relationship provides:

'2.4.5.   If an employee fails to advise the team leader or direct manager of his or her absence, and is absent for three (3) successive work days, the team leader or direct manager shall send a communication via registered mail to the employee's last known address or via other practical means e.g. hand-delivered notification, requesting the employee to return to work, simultaneously notifying the employee that failure to do so will result in dismissal.

2.4.6.   Should an employee be absent from work for five (5) consecutive work days without communicating his or her absence and the reasons thereof as described in this policy, the employee will be regarded as having absconded and his or her employment must summarily be terminated.'


[30]   The employer's dismissal of the appellant was thus in compliance with the above clause, but, this did not close the door to the appellant. She was entitled to appeal internally against that decision, but failed to do so, arguing that to appeal against the decision was futile as the horse had already bolted. Again, the appellant's submission in respect of appealing the decision is misconceived. An internal appeal in circumstances such as this would inevitably mean that the appellant would be required to explain her absence from work which must then be considered by the employer.

[31]   The employer's action was in compliance with the agreement that regulated the employment relationship with the appellant and as such it cannot be said that it had in any way or form breached the agreement that regulated the relationship between them.

[32]   In the circumstances, the appellant's claim that her suspension and subsequent dismissal was in breach of the agreement is without merit. Even if the Labour Court erred in finding that it had no jurisdiction to entertain this dispute, which it did, no purpose is served in setting aside that order and referring the matter back to the Labour Court.

[33]   Finally, I need to add that the appellant's decision, to proceed in terms of the BCEA instead of proceeding in terms of the LRA is totally mystifying, but might well have been informed by poor legal advice. If she had proceeded in terms of the LRA she would not only have been entitled to claim what she sought in these proceedings on the basis of an unfair dismissal, but would have been engaged in a process where the test is that of fairness and where the onus of proving the fairness of the dismissal is on the employer. More mystifying is that the appellant proceeded by way of motion proceedings knowing full well that her principal submission would be disputed by the respondent; that the resulting dispute would be irresoluble on the papers, making the application highly susceptible to dismissal for that reason alone and thus making her application stillborn.

[34]   Notwithstanding the above, I am of the view that this is a matter in which there should be no order as to costs.

[35]   In the result, I make the following order.

The appeal is dismissed.