Cases listed under subject matter

Absenteeism / Abscondment

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Beck / Parmalat SA (Pty) Ltd [2021] 2 BALR 131 (CCMA)

A dismissal following an employer's refusal to grant leave may be unfair if an employee has compelling reasons to be absent during the Covid-19 pandemic.

FAWU others v Rainbow Chickens (2000) 21 ILJ 615 (LC)

An employer's refusal to permit an employee to take time off to celebrate his or her religion may onstitute unfair discrimination. But it may not be unfair if this has the result that no work can be done. Generally, if there has been no prior instance of absenteeism, the employer is not entitled to dismiss. But if the absence is coupled with insubordination, dismissal may be justified.

Jammin Retail (Pty) Ltd and Mokwane (LC Case no JR 2784/08)

Where an employee has absconded, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss.

Khulani Fidelity Services Group v CCMA (LC JR 783/07)

Desertion consists of absence without authorisation with the intent to remain permanently away from employment. The intent can be inferred from the circumstances.

Kievits Kroon Country Estate (Pty) Ltd v CCMA others (LC Case NO: JR1856/08, judgment date: 1 October 2010)

Where an employee, after giving adequate notice to the employer, finds it necessary to take unpaid leave for a period of time because of religious or cultural beliefs, it may be unreasonable to dismiss the employee.

Kievits Kroon Country Estate v Mmoledi & others (JA 78/10) [2012] ZALAC 22 (24 July 2012)

Where an employee requests unpaid time off to attend a course based on traditional beliefs, the BCEA relating to sick leave certificates does not apply. Our society requires reasonable accommodation of diverse cultures, traditions and beliefs.

Mathabela v Potgietersrus Platinum Mine Ltd (1997) 18 ILJ 487 (LC)

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.

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

If an employee fails to report for duty for an extended period, what the employer must do before a dismissal can be called fair.

National Union of Mineworkers & Another v Rustenberg Base Metals Refiners (Pty) Ltd (1993) 14 ILJ 1094 (IC)

The criteria for deciding whether a dismissal for absenteeism due to sickness is reasonable are: (a) the nature of the illness; (b) the likely length of the absence; and (c) the employer's need to have the work done.

Pick 'n Pay Retailers (Pty) Ltd v South African Catering Commercial and Allied Workers Union obo Mzazi and Others (CA19/2015) [2016] ZALAC 56 (25 November 2016)

An employee being away from work without authorisation constitutes a wilful disregard for the employer's rules. Dismissal may be unfair if the absence does not cause the employer loss or damage.

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

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

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

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

Samancor Tubatse Ferrochrome v MEIBC & others (LAC JA 57/08, judgment 12 March 2010)

The Code of Good Practice: Dismissal conceives of incapacity as ill-health or injury but it can take other forms eg imprisonment and military call-up. Before dismissing for incapacity caused through imprisonment, an employer needs to consider the reasons for and extent of the incapacity, and whether any alternatives to dismissal do exist.

Tubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR 2679/10) [2013] ZALCJHB 16 (8 February 2013)

It is not unfair if an employer's code provides for termination at the end of an employee's extended period of unauthorised absence, provided she is given a fair opportunity to explain her absence if she returns to work.

Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49 (10 December 2021)

Unauthorised absence from work on the pretence of illness is dishonest conduct that negatively impacts upon the trust relationship and may justify dismissal.