In Article 31, we dealt with the distinction between desertion and abscondment.
In Article 32, we dealt with the misconduct of deeming desertion.
In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.
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- The relevant case is Mamasedi v Chief of the SA National Defence Force (2024) 35 SALLR 435 (CC) (Mamasedi).
- This matter concerns a workplace that is subject to a provision that indicates that, if an employee absents himself or herself from official duty without the permission of the employer for a period exceeding 30 days, such employee will be regarded as having been dismissed, on account of misconduct, with effect from the day immediately following his or her last day of work, but, the employer may, on good cause shown, authorise the reinstatement of such employee on such conditions as it may determine.
- Such provision serves the same purpose as a deeming provision in the public sector, which is to the effect that, if an employee is absent without permission for a certain specified time period, such employee is then deemed to be discharged, but may make written representations for his or her reinstatement.
- With reference to the location of the said workplace rule, namely, s59(3) of the Defence Act, 42 of 2002, the Constitutional Court in such matter held, inter alia:
- if the employee absents himself or herself from official duty without the aforementioned permission for a period exceeding 30 days, his or her dismissal will be on the basis of misconduct
- such dismissal will be effective on the day immediately following the last day at work or the last day of official leave
- such dismissal is not a final dismissal and will only be confirmed as final when the employee fails to show good cause why he should be reinstated
- So how is the 30-day time period to be calculated? – this is important because there are different consequences attached to a scenario where such unauthorised absence is for a period shorter than the period contained in the workplace rule (in casu, 30 or fewer days) and where such unauthorised absence exceeds the period contained in the workplace rule (in casu, exceeding 30 days).
Unauthorised absence for a shorter period than the period stipulated in the workplace rule
- In Mamasedi, this shorter period was 30 days or less than 30 days.
- In Mamasedi, the constitutional court held that, in respect of such shorter period than the period stipulated in the workplace rule:
- being absent from work without permission for a period of 30 days or less, is not catered for in the abovementioned workplace rule – such conduct constitutes misconduct not covered by termination by operation of law but indeed falls under the ‘garden-variety’ of being absent from the workplace without permission
- in such instance, the employer has to prove guilt and the employer also needs to comply with the applicable misconduct procedure
- falling outside of the scenario covered in the workplace rule (amounting to termination by operation of law), the employer is not permitted, on good cause shown, to authorise reinstatement on conditions so determined.
Unauthorised absence for period stipulated in the workplace rule (i e exceeding 30 days)
- In Mamasedi, the constitutional court held the following in this regard:
- once an employee breaches a workplace rule (i e absented him or herself from official duty without the permission of the employer for a period exceeding 30 days), he or she is regarded as being dismissed for misconduct
- there is no pre-dismissal procedure required to be complied with
- such dismissal is, however, not final and the employer may reinstate the employee on such conditions as it may be determined, on good cause shown
- In casu, the constitutional court held that the employer incorrectly calculated such 30 days to mean calendar days, whereas such 30 days should have been calculated as being limited to the days upon which the employee was obliged to work.
- Consequently, the constitutional court held that, in casu, the employee was absent, without the necessary authority for a period not exceeding 30 days and the employer wrongly held the viewpoint that such employee was dismissed by operation of law.
- Lastly, the constitutional court held that the dismissal was, therefore, ab initio unlawful and ordered the employer to pay remuneration and other benefits so withheld from the employee from the date of the dismissal until the date of the recommencement of the employee’s duties.
