Misconduct dismissals: a compassionate leave case

In Toyota SA Motors (PTY) Ltd v NUMSA obo Njilo and Others (D 692/19) [2022] ZALCD 12 (14 July 2022) the employer had a written leave policy that provided for compassionate leave relating to the death of “immediate family” members. In the policy this was defined as “husband, wife, grandparents, father, mother, father-in-law, mother-in-law, sister, brother, brother-in-law, sister-in-law, child, grandchildren”.

The employer’s policy provided that an employee “must provide a copy of the death certificate of that family member and, in certain cases, an employee may be required to provide an affidavit indicating the relationship between the employee and the deceased person”.

The employer found that the employee had miscategorised his leave in 2013, 2014 and 2015, when he put in leave for the death of his mother on two occasions and the death of his son on another occasion. An investigation revealed it was his late father’s second wife, his aunt and his nephew (his late brother’s son) who died. He was charged with dishonesty and dismissed.

At the arbitration the employee explained that he had been unaware of the intricacies of the compassionate leave policy in particular that it did not cover people he regarded (in Zulu culture) as his “immediate family”, “mother” and “son”. The employee submitted that in Zulu culture, a man assumes responsibility for his deceased father’s wives and the children of his deceased brother. In any event, he had not hidden the relationship between him and the deceased when he approached his (Zulu-speaking) group leaders to apply for leave.

The arbitrator had reference to the record regarding productionline employees, such as the employee in this matter. The arbitrator found the practice was that the employee approached his group leader to ask for leave.

The group leader completed the application form and forwarded it to HR for approval, together with the supporting death certificate. In light of the above evidence, the arbitrator found no dishonest conduct by the employee.

Taking into account the employee’s 17 years of service, unblemished disciplinary record and the fact that no evidence was led on the trust relationship having broken down, the arbitrator found in favour of the employee.

The employer took the award on review to the Labour Court (LC). The question before the LC was if the arbitrator made an error that represented a departure from the conduct of a reasonable decision maker. The employer argued that the employee had good knowledge of its compassionate leave policy.

The LC found that the leave policy in question, consisted of 35 pages, with compassionate leave situated in an obscure section in smaller writing. Not one of the employer’s four witnesses stated that the employee was given a copy of the policy or that its contents were properly explained to him or the employees in general.

The LC was of the view that another arbitrator could have easily found that the sanction of dismissal was unfair given the employee’s position, his years of service and his unblemished disciplinary record.

The LC found that the evidence did not demonstrate a contrived and devious manipulation by the employee to take advantage of compassionate leave. There was no evidence to prove that the trust relationship was destroyed. The LC could not find any reviewable irregularity committed by the Commissioner.

The review application was dismissed.

In this weekly column, labour lawyer Jonathan Goldberg, joint CEO of Global Business Solutions, looks at various aspects of labour law