Consider this…

An employee applied for 3 days leave from 9th to 11th December 2022. He wanted to attend the Christening of an adoring nephew. The leave application was made at least a month before leave date. The employee got no feedback about whether or not the leave was approved. He made follow up with his head of department on this but got no response. He made the final follow-up a day before the intended date of leave. The manager finally informed him that the leave was not approved. The reason given was that it was company policy that leave is not granted during the month of December on account of this being a busy season for the company. Incidentally, there were one or two other employees who had been given leave in the month. The employee was aware of this. In desperation, the employee made an appeal to the Managing Director. The MD did not grant the leave. Feeling aggrieved that for four weeks he had not received any response and that leave had been granted to a few others, the employee decided to proceed on leave anyway. He sent a note explaining his absence. Management was now considering to terminate the employee on the grounds of unauthorized absenteeism and disobedience to authority.

Assuming that the company goes ahead and terminates the employee, the employee, being aggrieved, could take the matter to court.

?The employee’s lawyer will seek to demonstrate to the court that although the employee “absconded”, he was driven into doing so on account of the unfairness of management. First, there was an inordinate and unjustifiable delay in considering the leave application by management. Second, there were other employees whose leaves were approved. Thirdly, there may be an argument that the employee was not aware of the policy about leave in December, especially if there was no evidence of this having been communicated to employees. For these reasons, the employee’s lawyer could submit that the action by management was manifestly unfair.?

The company’s lawyers would likely present the following defence:

·?????? It is company policy that leave is not granted during the month of December because it is a busy season for the company.

·?????? The employee was expressly told that his leave had not been approved.

·?????? Despite this, the employee went ahead to absent himself from duty.

·?????? The absence of the employee from work was not authorized and, therefore, amounted to absenteeism without leave or lawful cause.

·?????? The fact that he stayed away from work despite being advised that leave was not approved amounted to insubordination.?

In court, the judge will seek to determine two critical factors:

·?????? Was the termination substantively fair?

·?????? Was the termination procedurally fair?

For starters, he/she will make a determination whether or not the decision to deny leave was fair or not. The fact that the response was delayed without reasonable cause and that there were others who were granted leave could sway the judge to make a finding that management was unfair. Through this unfairness, the employee committed an offence which led to his termination. The judge could conclude that this sits within the threshold of “constructive termination” or that the decision to terminate was out of proportion to the offence.

What about procedural fairness?

The judge will keenly listen to hear about the procedure followed by management to terminate the employee. The Employment Act 2007 and jurisprudence from our courts has established the procedure as:

1. Employee is issued with a show cause letter, detailing facts about his/her offence. Employee is given at least 5 days to respond.

2. If explanation is not acceptable, employee is invited to a disciplinary hearing. They should get adequate notification (again at least 4-5 days) and should be advised of their right to bring along a fellow employee as their witness.

3. Disciplinary hearing takes place, and detailed minutes are taken. All attendees must sign, including the employee. Employee receives a copy of the signed minutes.

4. If employee is not able to defend themselves to management satisfaction, management takes disciplinary action – termination in this case. Issue of the letter of termination should show that management took time to consider the employee’s defence.

5. Termination letter should make provision for appeal.

6. Pay employee final dues within a reasonable period and issue him/her with a Certificate of Service.

?Should any of these steps be omitted, that could be cited as grounds for a finding of procedural unfairness.