View Full Version : How to charge that dishonest, absent employee

08-11-2012, 05:06
Keep it simple.. and use a professional so it doesn't come back and bite you!


Advocate Nicolene Erasmus

Creative employees often have weird and wonderful explanations for their absence from work. In the absence of proof to the contrary, employers often have no option but to believe the employee’s “story”. But what if it later turns out that the excuse was a lie or if the employer finds evidence that the employee’s explanation was false?

Consider the following: the employee tells the employer that the reason for his absence is the fact that he was hospitalized and the employer believes him. Only to find out two days later that the employee never was in hospital, but in fact at the gambling tables of Sun City? Employers would argue that the employee was not only absent - he was also dishonest, which justifies nothing less than dismissal. The charges would typically look like this:

Absence without leave on Monday and Tuesday (2 and 3 December);
Dishonesty in that you lied about the reasons for your absence.

Depending on the employer’s disciplinary code an employee may then be given a final written warning for his absence without leave for the two days, and could be dismissed for dishonesty. Most employers would agree that this is in fact how they deal with these matters in the workplace. But could it not be seen as a splitting or duplication of the charges?

The question of “splitting of charges” was dealt with in Ntshangane v Speciality Metals CC[1998] 3 BLLR 305 (LC)where the employer was faced with a similar situation.

On 23 December and 2 and 3 January the employee stayed away from work without permission.He was also late for work on 24 December. When he eventually reported for duty he tendered an explanation which was later found to be false. On 7 Januarythe employee was handed a charge-sheet detailing the following charges:

Late for work without good reason/permission.
Absent from work without good reason/permission.
Breach of employee's duty of good faith to the company.

On charge one the applicant was given a written warning valid for 6 months. On charge two he was given a final warning which was valid for 12 months. On charge three he was dismissed. Charge three was based on the employee’s false explanation of his whereabouts on 23 December 1996 and 2 and 3 January.

The employee referred the matter to the CCMA and was reinstated. The commissioner had the following to say:

“It is clear from the above that not only was the fact that the explanation given by the employee used to make the findings on count one and two but these apparent lies were used to build the case that there had been a breach of the employer’s good faith. No attempt can be made to effect a comprehensive statement of all the implications following from this general duty as they may vary from case to case. Apart from the fact that employee told lies and his absence had cause (sic) some inconvenience and embarrassment there was not evidence in what manner the position of trust was damages”.

In an application to make the award an order of court, the Labour Court held as follows:

“If applicant had a good and acceptable explanation for his lateness and absenteeism it would have been unfair to dismiss him under those circumstances. The fact that applicant had no good or acceptable reason for being late and absent made it proper for him to be charged. In charging him on account of lateness and absenteeism respondent made an election. Having made this election respondent went further and used applicant’s unacceptable and false explanation to formulate a third charge.

In my view this was unfair. It is clear that the basis for finding applicant guilty on the first two charges was applicant’s unacceptable explanation. Using the explanation to formulate a third charge took the issue beyond the realms of fairness. The picture would be different had the respondent charged applicant with only one charge relating to breach of trust.

My view is that Commissioner Pandya was correct in his award when he found that the reason for applicant’s guilty finding on charges one and two was because he had no good reason. He was therefore correct in finding that there was unfair splitting of charges relating to the third charge”.

As far as absence without leave is concerned, employers are advised to charge dishonest employees as follows: “Dishonesty in that you lied about the reasons for your absence on 2 and 3 August”.Nothing more, nothing less.

08-11-2012, 13:37
Interesting that criminal law uses this method to charge you with a number of charges, and if guilty you serve concurrent sentences, yet labour law it is different.

08-11-2012, 16:39
yeah! Motion Court has to be clearcut and simple - or they refer you to trial :)