In the case of Mtshweni v Smollan Sales and Marketing (Pty) Ltd – (2021) 30 CCMA, the employee, who was working as a merchandiser, was dismissed after a disciplinary hearing was held for failing to report for duty between 31 March and 16 April 2020.

In the disciplinary hearing, the employee was first charged with misrepresentation for which she was found not guilty. She was also charged with unauthorised absenteeism and failure to communicate with her manager during that period.
The employee was found guilty and dismissed. The matter was referred to the CCMA on the substantive fairness of her dismissal and reinstatement was requested.

Before the CCMA, the employee stated she required transport to the workplace and showed evidence that she had communicated – via WhatsApp – to her manager on 27 March 2020, explaining that there was no transport availability due to the Government-enforced Lockdown. She did so by sending pictures and videos of the transport pick-up point, to which the manager did not respond.

On 17 April, one of her managers phoned her and she received notice of her disciplinary hearing at her residence shortly after. The employee argued that it was not a case of not reporting for work or that she had no intention of reporting for duty. The employee’s evidence was that she could not get to work because of the transport restrictions.

The employee explained that she had argued this in the hearing, but the employer suggested that the employee had no evidence of sending the WhatsApp messages. The Arbitrator found that an employee must contact an employer if they are unable to report for duty, which would be tested in this matter.

The CCMA concluded that the Chairman of the hearing had incorrectly identified the date at which the employee communicated her inability to report for work due to transport problems, stating 27 April 2020 instead of 27 March 2020. Also the WhatsApp messages that the employee provided were sufficient to dismiss the employers claim that they had not been notified of the absenteeism.

It was found that that Chairman’s findings did not acknowledge the Emergency Lockdown Regulations that were communicated to the public, including restrictions to business activity and the transport sector. The dismissal was found to be unfair and irrational. The employer was reinstated with back-pay.

Chairpersons have to be trained not to ride rough shot over decisions. Where an employee presents credible evidence they need to have regard to such. If not, the employee will be reinstated.

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