It is not uncommon for employees to frustrate disciplinary processes in an attempt to delay proceedings. The challenge lies in determining how much should be tolerated – akin to asking how long is a piece of string.
The Supreme Court of Appeal (SCA) addressed this issue in Old Mutual Life Assurance Co SA Ltd v Gumbi (211/2006) [2007] ZASCA 52. The SCA found that an employee’s deliberate absence from a disciplinary enquiry does not invalidate the resulting dismissal.
The Gumbi Case
In the Gumbi matter, the employee was dismissed after submitting a medical certificate. On appeal, the employee was reinstated with the condition that the hearing would start afresh. During the second hearing, the employee’s representative adopted a combative stance, raising spurious objections to hinder proceedings. After a 10-minute adjournment extended to 30 minutes, the representative returned alone with a medical certificate citing “tension headache and enteritis.” The chairman adjourned the hearing for an hour but was informed that neither the employee nor the representative would return.
The SCA found the chairperson justified in doubting the reliability of the medical certificate, suspecting the employee was malingering. The mere production of the medical certificate was insufficient to justify the employee’s absence, especially as it did not state incapacity to attend the hearing. The chairperson was entitled to require the employee’s presence to assess his capacity to participate.
The SCA confirmed that fairness must benefit both parties. It referred to National Union of Metalworkers of SA v Vetsak Co-operative Ltd [1996] ZASCA 69, which emphasized balancing the interests of both the worker and the employer.
Epibiz Case
In Epibiz (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR616/18) [2023] ZALCJHB 226, the Johannesburg Labour Court dealt with an employee who was suspended pending a misconduct investigation. Despite being found not guilty, the employee failed to return to work, submitting consecutive medical certificates citing various ailments.
The employer’s repeated attempts to discuss her future employment were met with delays and excuses from the employee and her attorney. Eventually, the employer terminated her employment, citing her own admission of being medically unfit to work.
The employee approached the CCMA, which found her dismissal procedurally and substantively unfair. However, the Labour Court, applying the test from Gold Fields Mining SA (Pty) Ltd v CCMA (2014) 35 ILJ 943 (LAC), reviewed and set aside the arbitrator’s award, determining the dismissal was fair.
Both cases illustrate the principle that employers are not expected to tolerate employees’ prolonged absence or obstruction in disciplinary processes. Employers are entitled to dismiss employees for extended absences or when deliberate attempts are made to frustrate proceedings, provided such actions are reasonable and fair in the circumstances.
