In Association of Mineworkers and Construction Union obo Judas v Commission for Conciliation, Mediation and Arbitration and Others [2024] 2 BLLR 138 (LC), during the height of the COVID-19 pandemic, Concrete Hiring Projects (the Company) decided to close its operations for the duration of the national lockdown from 26 March to 19 April 2020. The Company elected to pay its employees in full during the lockdown period, with the amount to be offset against their annual leave days not yet taken. The Company requested its employees to furnish their contact numbers should the lockdown be extended and instructed employees to not leave the country.
The employee, a Mozambican national, was employed by the Company as a supervisor. Notwithstanding the Company’s instructions, the employee elected to return to Mozambique during the national lockdown. When the Company resumed its operations in June 2020, the employee failed to report for duty as the South African borders remained closed. In August 2020, the employee requested the Company to assist him to return to South Africa (SA), which request did not receive a favourable response from the Company. The employee eventually returned to work on 14 October 2020.
On his return to work, the employee was subjected to a disciplinary hearing and dismissed for being absent from work without permission for a four-month period. The Association of Mineworkers and Construction Workers Union (AMCU), acting on behalf of the employee, challenged the fairness of the employee’s dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA arbitrator found that the employee was the author of his own misfortune as he went to Mozambique at his own peril and was not able to return to SA when the lockdown had been lifted in June 2020. As the employee has been away from work for a period of four months, the arbitrator held that the Company could not have foreseen that the employee intended to return to work. Consequently, the arbitrator found the employee’s dismissal to be substantively fair.
Disgruntled by the arbitrator’s ruling, AMCU took the arbitration award on review and contended that the arbitrator had disregarded evidence which led to her erroneously concluding that the employee had absconded from work. Further, the arbitrator erred in not considering the appropriateness of the sanction of dismissal. The Company, on the other hand, opposed the review application and submitted that the arbitrator reached a reasonable decision based on the evidence tendered at the arbitration proceedings.
The Labour Court noted that an employee absconds from work when that employee has absented himself or herself from work without the employer’s authority and with the intention of not returning to work. In this regard, the court accepted AMCU’s submission that the Company had failed to prove that the employee had no intention of returning to work. The evidence presented at the arbitration demonstrated that while the employee had furnished the Company with a Mozambican contact number, the Company had not attempted to contact the employee. Nothing prevented the Company from contacting the employee if it intended to instruct the employee to return to work. Had the Company done so, it would have known the employee’s intention to return to work and it had, in effect, deprived itself of the opportunity of establishing the employee’s intentions.
Moreover, it was common cause that the employee had asked the Company for assistance to enable him to return to SA. Although the Company did not render the assistance, it was advised of the employee’s intention to return to work. The South African borders were opened on 1 October 2020. The employee got tested for COVID-19 and presented the test at the border in order to gain entry into SA. He reported for duty on 14 October 2020.
The presumption that an employee has absconded is not made lightly. The court noted that the Company did not refute the employee’s evidence that the Company had his Mozambican contact number, which it elected not to use. The employee sought the Company’s assistance and as soon as the borders opened, the employee took steps to leave Mozambique. The employee’s decision to join his family in Mozambique during the lockdown did not display an intention not to return to work even though it was taken against the Company’s instructions.
The evidence before the arbitrator thus demonstrated that while the employee was absent, he had the intention of returning to work. The arbitrator’s decision that he did not intend to return to work was unreasonable as it was conjecture that was disconnected from the evidence. Further, the arbitrator had misconceived the dispute before her in that she omitted to consider the appropriateness of the sanction of dismissal. The inquiry into the fairness of an employee’s dismissal for misconduct includes the determination of whether the sanction of dismissal was appropriate. The arbitrator did not conduct this part of the inquiry.
In the circumstances, the court held that the employee’s dismissal was substantively unfair as the Company had failed to discharge the onus of proving that the employee had absconded from work. The Company was ordered to pay the employee compensation equivalent to 12 months’ remuneration, and his costs.
In Seokwane v Bidvest Prestige Cleaning Services (Pty) Ltd [2024] 2 BLLR 194 (LC), Bidvest Prestige Cleaning Services (the Company) concluded a cleaning contract with the Volkswagen Group South Africa (VW). At the request of VW, the Company employed an employee, a general worker who had previously performed services for VW, on a three-year fixed term contract of employment. At the time of her employment by the Company, the employee was 62 years of age.
Some months later, during the COVID-19 lockdown, the employee was informed that she was to be retrenched and was offered a retrenchment package, which she declined. When she asked for reasons for her retrenchment, the employee was advised that her contract was to be terminated because she had exceeded the retirement age. The Company, on the other hand, claimed that the employee had not been told that she would be retrenched before she was informed of her retirement, but that she had subsequently asked to be retrenched.
Pursuant to the termination of her employment, the employee referred an automatically unfair dismissal dispute to the Labour Court alleging that she was dismissed on the grounds of age as contemplated in s 187(1) of the Labour Relations Act 66 of 1995 (the LRA). The Company denied this and raised the defence that the employee’s employment was terminated fairly after the employee had reached the agreed retirement age.
Section 6 of the Employment Equity Act 55 of 1998 prohibits unfair discrimination of employees based on age. Section 187(2)(b) of the LRA, however, provides that ‘a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity’.
The court held that the dispute over who had initiated the discussion about the employee’s retrenchment was immaterial for purposes of the dispute because it was common cause that the reason for the employee’s dismissal was retirement. The Company’s case was that it had exercised a discretion to employ the employee on a three-year contract with VW which had a renewal option. Her employment contract contained a clause, which stipulated that she would retire when she reached the age of 60 years. Moreover, the Company had a retirement policy which provided that the normal retirement age was 60 years.
The court found that the contract and retirement policy which the Company sought to rely on did not support the contention that the termination of the employee’s employment was fair as envisaged in s 187(2)(b) of the LRA. It was common cause that when the employee was employed, she had already passed the retirement age of 60 years. The retirement age could accordingly not assist the Company because it presupposed that the employment relationship commenced before the employee reached the retirement age.
The court held that determining the fairness of retirement requires more than proving that the employee being retired has exceeded the agreed or accepted retirement age. It must be established whether the employer is using retirement as a means of dismissing an employee for other reasons. The Company disregarded its retirement policy by employing the employee to please its client, VW. It had admitted that it was necessary to reduce its staff at VW and that it had chosen the employee for this reason. The real and proximate reason for the employee’s dismissal was thus based on the Company’s operational requirements. This meant that the Company could not rely on the defence afforded by s 187(2)(b) of the LRA. The Company selected the employee to be retrenched based on age and this rendered the employee’s dismissal automatically unfair.
The employee sought relief in the form of compensation. In this regard, the court found that the Company had not given the employee any warning of her retirement. The manner in which the Company retired the employee accordingly denied her the opportunity to prepare for her retirement. On this basis, the court awarded the employee compensation equivalent to 12 months’ remuneration and costs.
Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.
This article was first published in De Rebus in 2024 (April) DR 39.
