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R

IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT GABORONE CASE NO. IC. 475/2004

IN THE DISPUTE BETWEEN:

DIMPHO MOLOSIWA
………………………. APPLICANT

AND

E.S.O. for beyond 2000
………………………. RESPONDENT

CONSTITUTION OF THE COURT

M. EBRAHIM-CARSTENS INDUSTRIAL
COURT JUDGE

S.C.L. DINGALO
NOMINTED MEMBER (UNION)

FOR THE APPLICANT

IN PERSON

FOR THE RESPONDENT

MR. M.H. ABKENARI
MANAGING DIRECTOR

PLACE AND DATE OF PROCEEDINGS

GABORONE
24^TH MAY 2005

-Employee
absenting himself from the workplace after receiving a month’s
notice –Whether employee intended to abandon the contract-
Distinction between absenteeism, abscondment and/or desertion –
Legally incorrect for employer to hold that employee deemed to
have
deserted after expiry of prescribed number of days – employee only
deemed to have deserted when proved that he has formed an
intention
not to return to work-

-Whether
disciplinary enquiry necessary where employee absconds or deserts-

-Party
in breach and not necessarily party that terminates liable to pay
prescribed notice-Employer seeking to deduct notice pay in
lieu from
employee’s withheld wages and accrued leave – Not deductible
under Section 80 but allowable deduction under Section
77(2) (ii) of
the Employment Act

JUDGMENT

[1] On the day scheduled for
hearing of this matter, there was no BOCCIM Assessor available.
Neither party had any objection to my
sitting only with the Union
Assessor Ms. Dingalo. I therefore directed in terms of the Trade
Disputes Act, that I proceed to hear
the matter, sitting with the
Union Assessor alone.

[2] The applicant was employed
by the respondent geyser manufacturing business as a general
helper/welder on 10^th
September 2003. He is claiming his withheld wages, leave pay and
notice pay. On 21^st
May 2004 he was handed a charge letter for flouting company security
procedures on leaving the premises, and for using abusive language
against his superior. The respondent contends that following a
disciplinary enquiry, the applicant was given a month’s notice on
Thursday 27^th
May 2004, after which he abandoned the workplace.

[3] The applicant denies
receiving the termination letter or abandoning the workplace. The
termination letter allegedly handed to
the applicant reads:

“…. Dear Dimpho,

Re: Termination of employment

Reference is made to the hearing that was held today at
head office in which you were found guilty and you accepted in the
presence
of witnesses and management that:

1. You deliberately ignored known company rules and
jumped fence during working hours in so doing avoided to be searched
for stolen
items as per requirement of company for everyone coming
in and out of company premises.

2. When reported you used abusive language to a
supervisor for reporting you that culminated into a
fight……………………………………

……….The management offered you to plea with a
view to soften statutory disciplinary action required against you for
your above
offences, but you replied saying that I knew I will be
fired and made no plea otherwise……………………

Although above offences amounts to summary dismissal
company chose to give you one (1) month notice from the date of this
letter
with condition that should you commit another offence within
notice time you will be summarily dismissed from work.

On June 27^th
2004 hand over all company property in your possession before you
proceed to administration office at head office for your settlement
of final pay ……..”

[4] The applicant testified that
on 27^th
May 2004, he asked his supervisor for permission to go to the bank as
it was month end. On his return that afternoon, he told his
supervisor he had a problem at home and would not be in on the
Friday. His supervisor was apparently to tell management this.

[5] The
applicant said he was therefore surprised on his return to work on
Monday to receive a letter dated 28^th
May 2004 stating that he had “absconded from work without prior
notice, we must take it you walked away from work and absconded
your
employment without giving due notice which is required of you by law.
With copy of this letter, we are seeking assistance of
labour to
oblige you to comply with the law by paying the company one month
salary in lieu of notice ….”.

[6] The applicant’s evidence
regarding time off was – “If you take more than one day, you had
to apply for leave in writing.
But if we went at month end, we just
told our supervisor …..” He testified that at month end
employees often went off to pay
their accounts and to attend to their
banking.

[7] Christine Direnyane, an
administrator with the respondent testified that she handed the
termination letter to the applicant on
the morning of Thursday 27^th
May 2004. She said the applicant was so incensed at receiving the
termination letter; he caused a scene and then left the workplace
in
a huff. He disappeared from work for the rest of the day and failed
to report for work the next day.

[8] Ms Direnyane also
contradicted the applicant’s evidence that employees were free to
simply go off at month end without completing
the necessary forms.
In particular, she set out the procedure of written applications for
leave, which were lodged with her for
transmission to head office for
approval. She did acknowledge, however, that if she was not in, it
was possible that employees could
pop out for a short while with the
supervisor’s permission. The form would then be completed later.
However, she clarified that
with regard to leave requests, the
employees had to go to head office for both completion of the form,
and approval of leave, if
she was not in.

[9] The applicant did not
challenge Christine’s evidence that he only punched his card for
Thursday morning and did not do so on
Thursday afternoon and on
Friday. Indeed, it is his evidence that he sought permission from
his supervisor to go to the bank on
Thursday, and to attend to a
personal matter on Friday. He told the court that he had to attend a
funeral at home. By his own admission
this would have required for
him to apply for leave in writing. This he failed to do.

[10] The court found Christine
Direnyane to be a better witness than the applicant. The court
accepts her evidence that she handed
the applicant a termination
letter on 27^th
May 2004 placing him on a month’s notice, after which he left the
workplace without following the procedures for time off or for
leave.

[11] The court further accepts
that on receiving the termination letter the applicant exhibited it
to some of his colleagues, created
a scene, and then stormed off from
the workplace, indicating that he no longer wished to be employed.
The court finds therefore
that the applicant left the workplace
without permission. Did the applicant’s conduct, however, amount
to abscondment or desertion?

The Law Regarding
Absenteeism/Abscondment/Desertion

[12] The common law rule
requires an employee to continue to render service during the agreed
hours of work. John Grogan in “Workplace
Law” – Third Edition,
at page 41 onwards states that failure to render service may take
many forms:

“….ranging
from desertion through absenteeism to unpunctuality. In such cases,
the employer is entitled to dock from employee’s
wage an amount
proportional to the latter’s absence. But not every absence from
work will justify termination of the contract”.

[13] In his publication –
“Dismissal”- (Juta & Co. 2002, Reprinted 2004), Grogan states
at page 107 that:

“In
modern labour law, a distinction is usually drawn between
absenteeism, abscondment and/or desertion. Absenteeism, in turn,
can
be divided into late coming, absences from an employee’s
workstation, and absences from the workplace itself for short
periods.
Abscondment is deemed to have occurred when the employee is
absent from work for a time that warrants the inference that the
employee
does not intend to return to work. Desertion is deemed to
have taken place when the employee has actually intimated expressly
or
by implication that he does not intend to return to work”.

Further, at page 109:

“The dividing line between
absenteeism and abscondment or desertion is flexible. Many
disciplinary codes prescribe that a number
of days –usually five or
seven continuous working days – must elapse before an employee is
guilty of abscondment. Some codes
provide that when the prescribed
time expires, the employee will be ‘deemed’ to have absconded, or
to have ‘dismissed himself’.
This approach is legally incorrect;
employees are deemed to have deserted only when it is proved that
they have formed an intention
not to resume work. In such
circumstances, it is the employer that terminates the employment
contract by accepting the employee’s
repudiation. On this approach,
abscondment or desertion remains a disciplinary offence, and the
employees concerned retain the procedural
right to present their
cases if the assumption that the employee intended to abandon the
contract turns out to be incorrect. It
follows that employees
accused of absconding are entitled to be heard before their contracts
are terminated, provided that the employer
is aware of the employees’
whereabouts, and the employees wish to present their cases”.

[14] Christine testified that on
Monday morning she handed the applicant the letter from Headquarters
accepting his abandonment of
work during his notice period. The
applicant contends that even if it can be said that he left the
workplace without permission,
he was still entitled to a hearing
before he was given the letter on Monday 31^st May 2004
accepting his abscondment.

Procedural Fairness

[15] The courts accept that a
disciplinary hearing is unnecessary if an employee has absconded and
his whereabouts are unknown. Similarly,
where an employee has
deserted and indicated an unequivocal intention not to return to
work, the employer need not conduct an enquiry.
At page 157/158 of
“Dismissal” Grogan states:

“Initially,
the view that employees who have deserted or absconded are not
entitled to hearings flowed from the view that such employees
had
terminated the contract. However, in SABC
vs CCMA & Others(2001) 22 ILJ 487 (LC) and
SACWU vs. Dysai (2001)
7BLLR 731 (LAC) the
Labour and Labour Appeal Courts, respectively, held that dismissal of
a deserting employee occurs when the employer accepts the
employee’s
repudiation of the contract.

However, in SABC the
court acknowledged that it would be “silly” to require an
employer to hold a hearing for an employee who had deserted and
indicated an unequivocal intention not to return. The problem arises
in cases of “unexplained” desertion – i.e. when employees
give
no indication of whether they intend to resume work. As the court
pointed out, mere absence is not in itself conclusive evidence
of
desertion. Up to the point when the intention not to return is
established, the absent employee is simply absent without leave.
This
was found to have been the case in the appeal against the SABC
judgment.

Establishing the existence or
otherwise of that intention is therefore critical. If the intention
to leave is established, there
is no need to hold a hearing. But how
does one establish this intention, or the lack of it, in cases where
the employee has simply
disappeared? The labour court made the
following suggestion for such cases:

‘What constitutes desertion
is a matter of fact. In some instances an unexplained absence for a
reasonable period, that is to say,
reasonable in relation to the
employer’s operational requirements, will establish the fact of
desertion’.

Therefore:

In the instance of an employee
who remains away from the workplace and whose whereabouts are not
known and who is out of reach of
the employer, it is plainly
impracticable to impose upon the employer the obligation to convene a
disciplinary inquiry before reaching
the conclusion that the fact of
desertion has occurred and in consequence of which he is entitled in
response thereto to elect to
terminate the contract.

However, whether an employer
should convene a disciplinary inquiry before taking the decision to
dismiss (i.e. accept the repudiation)
is according to the court,
dependent on the relevant circumstances”.

[16] The court has found that
the applicant exhibited the termination letter to fellow employees,
following which he angrily left
the workplace, indicating an
unequivocal intention not to return to work. The court has already
said that if the intention to leave
is established, there is no need
to hold a hearing. The
court finds that in these particular circumstances, the applicant’s
intention to leave permanently was clearly established,
so there was
no need for the respondent to hold a hearing. The termination of his
contract of employment was therefore not
procedurally unfair.

Termination, Breach of
Contract and Notice

[17] It is clear from the
evidence adduced that the applicant, on receipt of the termination
letter, absented himself from the workplace
without permission and
without any good reason. An employee who is absent from work without
the prior permission of his employer
is deemed to be in breach of his
contract of employment – Section 21(2) of the Employment Act Cap
47:01:

“21(2). The
employee shall be deemed to be in breach of a contract of employment
if he is absent from work without the prior consent of his
employer
or his employer’s representative unless he has reasonable cause for
such absence and, as soon as it is reasonably practicable
to do so,
informs his employer or his employer’s representative of that cause.”

[18] “Whether a breach of
contract amounts to a repudiation is a serious matter not to be
lightly found or inferred. What has to
be established is that the
defaulting party has made his intention clear beyond reasonable doubt
no longer to perform his side of
the bargain”.- ( The Law Of
Contract Cheshire Fifoot & Furmston 11^th Edition page
523).

[19] The court has already found
that the applicant clearly intimated that he no longer wished to
honour the employment contract.
The employer accepted the
repudiation.

[20] The respondent claims that
the applicant is obliged in law to pay a month’s notice pay in lieu
of notice. That there is a statutory
obligation on a party in breach
to pay notice is evident from Section 22 of the Employment Act. It
provides “that the
party in breach of a contract of employment whereby or as a direct
result of which employment under the contract ceases
shall be liable
to pay to the other party a sum equal to the amount he would have
been liable to pay to the other party in order
to terminate the
contract in accordance with section 19(a) or (b), as is appropriate.”

[21] The court has already said
that where an employee has deserted, it is the employer who
terminates the employment contract on
accepting the employee’s
repudiation. The fact that the respondent accepted the applicant’s
repudiation does not absolve the
applicant from liability under
Section 22. In my view, this section refers to payment of the
prescribed notice by the party in breach
and not the party who
accepts the breach and terminates the employment relationship. Where
an employer fails to pay wages for example,
and an employee leaves
his employment, it is the employer who is in breach [Section 21(1)
Employment Act], and liable to pay notice.

[22] In this instance the
applicant is the party in breach. The direct result of the breach is
that the contract of employment ceased
on the employer’s acceptance
of the repudiation. The applicant is therefore liable to pay the
respondent a sum equal to the amount
he would have been liable to pay
under Section 19 of the Employment Act. As he was paid monthly, a
month’s notice is due to the
respondent. The applicant earned P5.80
an hour and ordinarily worked 8 hours a day over a 22 day month. A
month’s wages computes
to P 1,020.80 (P5.80 x 8 x 22).

Applicant’s Other Claims

[23] The
applicant also claims withheld wages and leave pay. The respondent
concedes that the applicant is due 6.25 days of accrued
leave for
that year and 4 days of wages. This computes to 10.25 days x 8 hours
x P 5.80 per hour which equates to P 475.60.

[25] An employer may not make
any deductions from an employee’s dues unless the same is
sanctioned by Section 80 of the Employment
Act. However, Section 77
(2) (ii) of the Employment Act provides that:

“77(2)(ii) the employer may
deduct, subject to any order made by a court or the Commissioner to
the contrary, from the total wages
and any other payments which may
be due to the employee such sum as the employee is liable to pay by
virtue of section 19(a) or (b).”

[26] In terms of Section 22 of
the Act, the employee in breach is liable to pay the innocent party a
sum equal to that applicable
to a termination in accordance with
Section 19. In terms of Section 77 the employer may deduct such sum
as the employee is liable
to pay by virtue of Section 19. The
respondent may therefore deduct from the applicant’s dues, the
notice pay in lieu due from
the applicant in terms of Section 22 as
read with section 19.

[27] This means therefore that
the applicant must pay to the respondent the sum of P 545.20, (being
the difference between

P 1,020.80 and P 475.60).

Determination

In all the circumstances of this
case, the court makes the following determination:

1. The termination of the
   applicant’s contract of employment by the respondent, on
   acceptance of he applicant’s breach, was substantively
   fair and
   procedurally not unfair.

2. In terms of Section 25 of the
   Trade Disputes Act, as read with Sections 22, 19, and 77 of the
   Employment Act, the applicant is hereby
   directed to pay to the
   applicant the sum of P 545.20 (being the difference between the
   notice payable by the applicant and his
   entitlements for accrued
   leave and withheld wages).

3. The applicant is further
   directed to pay the aforesaid sum of P 545.20 to the respondent,
   through the office of the Register of
   the Industrial Court on or
   before Friday 28^th April 2006.

4. No order is made as to costs.

Dated at Gaborone this day
of February 2006.

…………………………………..

M.
EBRAHIM-CARSTENS

INDUSTRIAL
COURT JUDGE

I agree on the facts:

……………………………………

S.C.L. DINGALO

NOMINATED
MEMBER (UNION)

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