- The employee failed to let her line manager know she would be absent on 21 April 2021.
- The arbitrator found the dismissal fair, noting the employee had received three prior warnings for the same type of conduct.
- The Labour Court saw no reason to overturn the arbitration award.
The Labour Court has confirmed that failing to notify a manager of an absence can justify dismissal, even where the employee was genuinely ill and had a medical certificate to show for it.
At the heart of the case was a question of whether being sick relieves an employee of the duty to communicate. The court’s answer was no.
Zingisa Mqulwana took her case to the Labour Court, asking it to review and set aside an arbitration award issued by Commissioner NE Samual of the Commission for Conciliation, Mediation and Arbitration (CCMA).
The commissioner had found that her dismissal by Webhelp SA Outsourcing (Pty) Ltd was substantively fair, meaning there was a valid reason for it.
Mqulwana was dismissed after failing to let her line manager know she would not be at work on 21 April 2021. She had experienced a nosebleed at work on 19 April and was referred for medical attention. She later saw a doctor and was booked off sick until 22 April.
On 20 April, she came into work and told an operations manager she had been booked off. She did not say how long she would be away, and she had not yet provided a medical certificate. She also never contacted her line manager to let him know she would not be in the following day.
Evidence and arbitration findings
The evidence showed that Mqulwana’s line manager tried to reach her by phone and message on 21 April but got no response. Mqulwana explained that her phone had been stolen, so she never received those attempts to contact her.
She added that she had not thought it necessary to borrow a family member’s phone, since she had already spoken to the operations manager.
The arbitrator was not satisfied with this explanation and found that Mqulwana had breached a clear workplace rule requiring employees to notify their line manager when absent. The arbitrator stated, “He also failed to contact anyone on 21 April to notify them he would be absent, quite apart from not contacting his line manager.”
The arbitrator also found that producing a medical certificate after the fact did not address the employer’s need to know, on the day itself, whether Mqulwana would be coming in.
When it came to sanctions, the arbitrator noted that Mqulwana had already received three prior warnings for the same kind of conduct.
Review application and court findings
Mqulwana brought the review application herself and essentially revisited the same arguments she had raised at arbitration. She maintained that the dismissal was unfair because she had been genuinely ill and that the employer had known as much.
Acting Judge R Lagrange was not persuaded. The court pointed out that the application did not raise any valid ground of review.
A review is not the same as an appeal, the court held. Mqulwana needed to show that the arbitrator’s decision was one that no reasonable arbitrator could ever have reached on the evidence, and she had not come close to doing that.
The court stated, “Even on the most generous interpretation of the applicant’s grounds of review, she did not establish why the arbitrator’s analysis of the evidence was so flawed that no reasonable arbitrator could have reached the same conclusion.”
The court further held, “It cannot be said that the factual findings and the arbitrator’s decision on the appropriateness of the sanction of dismissal are ones that no reasonable arbitrator could have reached.”
Outcome
The Labour Court dismissed the review application and upheld the arbitration award in full. Neither party was ordered to pay the other’s legal costs.
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