Too scared to come to work: Unauthorised absence after a strikeStrikes are frequently characterised by violence and non-striking employees are often apprehensive to report for duty, but can such employees be dismissed simply for failing to report for duty during such times? © Pavel Rusak – 123RF.com The recent case of Association of Mineworkers and Construction Union (Amcu) and Another v Metal and Engineering Bargaining Council and Others has a bearing on this question. The facts are:
Amcu referred an unfair labour practice dispute to the Metal and Engineering Industries Bargaining Council (MEIBC) on behalf of Mashologo. The arbitrator found in favour of the employer and upheld the disciplinary sanction short of dismissal. Amcu bought an application to review the arbitration award in the Labour Court. The Labour Court found that Mashologo had reported for duty on 25, 27 and 28 March 2015 as well as 8 April 2015, but had not reported for duty in the period 9 to 17 April 2015. Mashologo contended that there was no transport available for him to report for duty but conceded that other employees had successfully gone to work utilising other means of transport. Mashologo received the SMS regarding the interdict but did not return to work due to the violence and intimidation associated with the strike. His fear of violence and intimidation was not informed by his own experiences but by the SMS sent out by the employer. He testified that this caused him not to report for duty or attend the induction process. The Labour Court found inconsistencies in Mashologo’s evidence and questioned his inability to report for duty where alternative transportation had been available which he had failed to utilise. The Labour Court upheld the arbitration award and found: “It would be an arduous burden to expect employers faced with an unprotected strike to deal with minute details of each employee who did not report for duty. It is incumbent upon an individual employee to dissociate him/herself from the striking employees and communicate that decision to the employer in no uncertain terms.” While the Labour Court did not deal with what might constitute “no uncertain terms”, it has placed an onus on non-striking employees to actively distance themselves from the unprotected strike in which they do not wish to participate and advise the employer accordingly. Employees cannot rely on unsubstantiated excuses for a failure to report for work in an endeavour to avoid discipline in such circumstances. About the authorFiona Leppan, director in the Employment practice and Merrick Steenkam, candidate attorney, at Cliffe Dekker Hofmeyr. |