Absenteeism: The importance of record keeping and taking action

Sep 10, 2009


Maksal Tubes v MEIBC & Others (Labour Court JR2450/07, 24 March 2009 per Van
Niekerk J) was an application to review and set aside the arbitration award issued by the
second respondent (‘the commissioner’), in which the commissioner found that the
dismissal of the third respondent (‘the employee’) was substantively unfair, and ordered
his reinstatement.

The employee was absent from work for one day during February 2007 after he received a
report that his son had fainted (the employee was a single parent). The employee tried
unsuccessfully to contact his supervisor, Hamman, and as a result he contacted another
supervisor. On his return to work, the employee failed to provide proof of his son’s
medical condition. Hamman reviewed the employee’s attendance record and was of the
opinion that it showed unacceptably high levels of absenteeism. No disciplinary action had
ever been taken against the employee for his attendance record. Collective ‘special final
written warnings were, however, issued to the employee during April and December 2006
respectively, for his participation in unprotected strike action. Hamman charged the
employee with being absent from work without authorization. The employee was found
guilty and dismissed.

The arbitrator held that a sanction of dismissal was too harsh and that the employee’ s
record of absenteeism was irrelevant, as no disciplinary action had ever been taken
against him.

The review test to be applied was whether the decision to which the arbitrator came was a
decision to which no reasonable decision-maker could have come to (Sidumo & another v
Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC)). The court held that
at the arbitration, Hamman was unable to shed light on the status of any of the periods of
absence on which the employer relied for proving excessive absenteeism, and also failed
to establish any basis to suggest that any of the periods of absence were taken without
permission. In contrast, the employee testified that he had on all occasions sought
permission to be absent.

The employer argued that the arbitrator failed the Sidumo test in relation to the
appropriateness of dismissal as the sanction. According to the court, contrary to what the
employer asserted, the arbitrator took all factors into account and the award clearly
recorded that the arbitrator dealt with the evidence before her in relation to the
employee’s prior absenteeism.

The employer also argued that the arbitrator failed to consider properly the special final
warning against the employee and the fact that it was made clear to union members that
they would be dismissed should they commit any act of misconduct during the period for
which the warning remained valid.

The court held that it was clear from the arbitration record that there was no evidence to
suggest that the employee was personally made aware of the content of the warning and
the consequences of future misconduct, that the warning was ever put to the employee at
the disciplinary enquiry, or what role it played in the determination of dismissal as the

Finally, much of the relevant background and other averments crucial to the employer’s
case was disclosed only in the founding affidavit – they were absent from the record of
the arbitration proceedings. The consequences of these shortcomings by the employer at
the arbitration hearing could not be blamed on the arbitrator.

In the result, the application was dismissed, with costs.

September 2009

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