SABC v CCMA & others (2001) 22 ILJ 487 (LC)

Principle:

Where an employee has absconded, the necessity of a disciplinary hearing depends on the circumstances and practicality of holding an enquiry.

Facts:

The employee had been dismissed but subsequently reinstated by agreement. One of the terms of that agreement was that the employee would advise in writing of the date on which he was to resume his duties. He was given a verbal instruction to report for duty on a particular day and time. He was also given a duty roster which showed that he had to present himself for work on specific days. He failed to report for work at the specified time and on the subsequent days. A letter was addressed to him warning that "If you do not report for duty on Tuesday 02 December 1997 at 14h00, disciplinary action may be taken against you." When the employee ignored this letter, the employee wrote him another one dated 04 December 1997 in the following terms: "This is an urgent reminder that you are required to report for duty. If you do not report for duty by Friday 05 December at 8h00, you will be regarded as having absconded."

The employee still did not report for duty. As a result, the following letter dated 12 January 1998: "With reference to our correspondence addressed to you dated 1 and 4 December 1997 I herewith confirm that your services with the SABC have been terminated with effect from 5 December 1997."

In response to the last letter, the employee wrote a letter dated 16 January 1998. Some of the issues he raised in that letter were that: (i) the employer failed to give him a written notification as to when he should report for duty as the employee was required by their settlement agreement to do; (ii) he did not abscond but was merely awaiting the aforementioned letter and was not prepared to come to work for as long as what he perceived to be his continued victimisation by the employer persisted; (iii) he was still waiting for the motor vehicle subsidy and his December salary; and (iv) he considered himself to be still an employee of the employer.

The Labour Court had to decide whether the employee's failure to heed the written warning, to report for work on the specified date or else run the risk of being deemed to have absconded, excused the employer from giving the employee a hearing prior to the effective termination of his contract of employment.