Tshirando and Fidelity Reaction Services
06-AUG-07
Case No. GAJB 19547 / 06
Award Date 5 April 2006
Jurisdiction CCMA, Johannesburg
Commissioner SA Magwaza
Subject Substantive Fairness in Dismissal, Absence without
Leave/ Desertion
Issue:
Whether the employee’s dismissal for absence from work (desertion) was unfair given a disciplinary hearing was not conducted.
Summary of Facts:
The applicant employee was dismissed for desertion after he had been absent from work and failed to notify his employer of his whereabouts. The employer sent a telegram asking him to contact the employer, but he did not.
The employee claimed that he was dismissed telephonically without a hearing, which amounted to an unfair dismissal.
Summary of Judgement:
The Commissioner made reference to the decision of Phenithi v Minister of Education (2005) 26 ILJ 1231 (O), in which the Court noted the following:
• whether, exercise of
discretion is obligatory or not, does not alter the position
that the statute does not blatantly ignore the right of the
employee to be heard;
• the legislative provisions give the employer a discretion
whether or not to hold a hearing;
• the exercise of discretion has to be decided on the basis
of the facts of the particular case;
• where adequate warning has been given of the consequences
of extended absence without explanation, the employer is
relieved of the obligation to hold a hearing; and
• the real issue is whether adequate warning has been given
in that all efforts have been made to contact the employee.
On the basis of the above principles, the Commissioner found that the dismissal was not unfair. He found that desertion is a disciplinary offence and that the employer had attempted to afford the right to be heard, but that the employee failed to resurface, without explanation. Strangely, the Commissioner’s decision does not include details as to the duration of the unauthorised absence.
