Radebe v Keeley Forwarding (Pty) Ltd (1) (1988) 19 ILJ 504 (IC)

Principle:

In certain circumstances, dismissal is too harsh a penalty for an employee who absented himself from work.

Facts:

The employee, a casual security guard, absented himself from his post for about 30 minutes to go to the toilet. The Industrial Court found that although this was misconduct, it did not constitute a sufficiently serious dereliction of duty to warrant dismissal.

Extract from the judgment:

[At p 505] This is an application in terms of s 43(2) of the Labour Relations Act 28 of 1956 (the Act) for the reinstatement of the applicant on the grounds of an alleged unfair labour practice.

The applicant avers that he was unfairly dismissed by the respondent on 3 June 1987 as a result of an incident which occurred on 28 May 1987. It is common cause that on 28 May 1987 the applicant was employed to guard a warehouse of respondent's, and that he left his post for some time, probably for about half an hour, to go to the toilet, during which period a client arrived and found the warehouse unguarded and reported it to the respondent. Respondent regarded this as a grave dereliction of duty and avers that because of several prior verbal warnings it held an enquiry on 3 June 1987 and decided summarily to dismiss the applicant.

Mr Zondo , for the applicant, submitted that the applicant could not have been a casual employee, because a casual employee is defined in s 1(iii) of the Basic Conditions of Employment Act 3 of 1983 as:

'Casual employee means a day worker who is employed by the same employer on not more than three days in any week.'

Mr Broster, for the respondent, submitted that it is unhelpful to look at the said definition, as the court has to look at the real nature of the applicant's employment at the time of his dismissal.

It was common cause, and the court also finds, that the applicant was in fact an employee of the respondent in terms of s 1 of the Act, which reads as follows:

"'Employee" means any person who is employed by or working for any employer and receiving or entitled to receive any remuneration, and, subject to subsection (3), any other person whomsoever who in any manner assists in the carrying on or conducting of the business of an employer; and "employed" and employment" have corresponding meanings.'

Consequently the provisions of the Act are applicable to the applicant, and he was therefore within his rights to bring this application in terms of the said Act.

On a factual issue, the court finds that prima facie the probabilities favour the respondent's version as to the nature of the applicant's employment with the respondent which is set out in para 5.4 of the respondent's response and which reads as follows:

'The respondent's hiring of services is conducted in the following manner:

  1. at 06h00, 14h00, 18h00 and 22h00 the respondent, through its servants, hires potential casual employees in order to perform certain specific functions;

  2. the casual employees are hired on a first come first served basis;

  3. the employees are only hired for specific shifts which, depending on the circumstances, are either an eight-hour or a 12-hour shift;

  4. the employees are informed of the basis of their employment and are issued a ticket which is then signed by the foreman;

  5. after the specific shift is completed, the employee's supervisor endorses the ticket to the effect that the employee has completed the shift, whereupon the ticket is handed back to the employee;

  6. on Monday and Thursday of each week the employee may hand in this ticket to the respondent's pay office and collect his remuneration for the shift completed;

  7. between the periods February 1985 and June 1987 the applicant was employed by the respondent in the manner set out above.'

Mr Zondo submitted that the applicant's dismissal was both substantively and procedurally unfair. As the respondent has not given details of the prior warnings given to the applicant, eg the dates of such warnings and especially the nature of the misconduct that warranted such warnings, the court cannot take any cognizance thereof as some or all of these warnings could have prescribed. Although the respondent regarded the applicant's absence from his post as a grave dereliction of duty, it gave insufficient details of why it so regarded this misconduct as such.

In the circumstances, the court finds that the applicant's conduct on that particular day, by absenting himself for quite a lengthy period, amounted to misconduct, but not so serious as to warrant instant dismissal.

The court consequently finds that the applicant's dismissal was substantively unfair. In the light of this finding it is not necessary to deal in detail with the submission that it was also procedurally unfair, and all the court will say at this stage is that prima facie it appears to be procedurally unfair as well.

Apart from the findings already made, the court, having considered the affidavits, the arguments and authorities referred to therein, makes the following additional findings:

  1. the applicant has prima facie a reasonable prospect of success should this matter in the final instance be referred to the industrial court for determination in terms of s 46(9);

  2. that the balance of convenience favours the applicant; and

  3. that, taking into account all the circumstances of this matter, the granting of an order under s 43(4) has been established.

In the light of the aforegoing, the court makes the following order:

  1. in terms of s 43(4) (b) (i) of the Act, the respondent is ordered to reinstate the applicant in its employ on terms and conditions no less favourable to him than those that governed his employment prior to the termination of his employment on 3 June 1987;

  2. the order in para (a) hereof

    1. is made retrospective for 90 days to 6 September 1987;

    2. is hereby extended for a further period of 30 days as from 5 December 1987 to 3 January 1987; and

  3. no order is made as to costs.

The court wishes to add that Mr Broster , in his argument, said that because of the nature of the applicant's employment with the respondent, it will be impractical to make an order for reinstatement, but the court would like to point out that where the court has found that the applicant presented himself each day and was employed on the basis set out by the respondent, that they were hired on a first come first served basis, that if the applicant is there at the specific times, and he will then have to be treated in terms of the respondent's policy, namely first come first served, and the court can see no reason why that cannot work on that basis, and should the respondent then for some other reason, not in terms of the policy, decide to overlook the applicant, it could probably form the basis of another new unfair labour practice. So the court is therefore satisfied that this order can be implemented in practice, and that is then the order of the court.