Dis­missal for absence dur­ing Jail­Time upheld

In the mat­ter of Ndzeru v Trans­net National Ports Author­ity and Oth­ers (C369/2020) [2023] ZALCCT 11; [2023] 6 BLLR 565 (LC); (2023) 44 ILJ 1307 (LC) (16 March 2023) the employee, a former Mar­ine Shore Hand employed by Trans­net National Ports Author­ity (TNPA), chal­lenged his dis­missal on the grounds of inca­pa­city.

The employee had been employed by TNPA since Octo­ber 2011.

In May 2019, he went absent from work without proper approval and, soon after, became involved in an attemp­ted hijack­ing incid­ent in Limpopo.

Dur­ing this incid­ent, he shot two men with his per­sonal fire­arm, was arres­ted, and remained in cus­tody after bail was twice refused.

TNPA only dis­covered his cir­cum­stances after mak­ing enquir­ies.

When the employee failed to return by mid-july 2019, TNPA sched­uled an inca­pa­city hear­ing for 30 July, deliv­er­ing notice to his spouse.

The hear­ing went ahead in his absence, but his union rep­res­ent­at­ive atten­ded on his behalf.

He was dis­missed for inca­pa­city, hav­ing been unable to per­form his duties for more than seven weeks.

Soon after, the employee wrote a let­ter stat­ing he would not con­test the dis­missal and author­ised the release of his pen­sion bene­fits.

He later claimed he only signed the let­ter to access his funds after two months without pay, and that he had been misled by his man­ager into doing so.

Upon release on bail in August 2019, he began con­tact­ing his union and TNPA man­age­ment about rein­state­ment.

However, it was only in Octo­ber that he form­ally raised objec­tions to his dis­missal, cit­ing alleged incon­sist­ent treat­ment of other employ­ees.

The dis­pute was referred to the Trans­net Bar­gain­ing Coun­cil.

The Arbit­rator found that the dis­missal was both sub­stant­ively and pro­ced­ur­ally fair. He said:

• The employee’s absence cre­ated oper­a­tional pres­sures in a busy har­bour;

• At the time of dis­missal, he had already been refused bail twice and there was no clar­ity on when he might return; and

• The employee had him­self con­sen­ted to the dis­missal to exped­ite pen­sion pay­ments.

Com­par­is­ons to other employ­ees were rejec­ted, as those cases involved much shorter absences or dif­fer­ent cir­cum­stances.

The employee sought to review the award, arguing pro­ced­ural unfair­ness and incon­sist­ent treat­ment.

He also claimed TNPA should have given him a post-dis­missal hear­ing once he was out on bail.

The Court dis­missed the review, hold­ing that arbit­rat­ors can only be faul­ted on evid­ence placed before them.

The judge emphas­ised that there is no auto­matic right to a postdis­missal hear­ing in inca­pa­city cases arising from incar­cer­a­tion, whether such a hear­ing is fair depends on the facts of each case.

The Court accep­ted the employee was rep­res­en­ted by his union dur­ing the hear­ing and that he later had the oppor­tun­ity to refer his dis­missal to the bar­gain­ing coun­cil, which he did.

His dis­missal was there­fore upheld as fair.

No order was made as to costs.

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