I was off sick for two days with verbal permission from my manager but was dismissed for absconding. Is this legal?

The long answer

The Labour Relations Act (LRA) says that a dismissal must be both 

1. substantively fair, which means that there must be a valid reason for it, and

2. procedurally fair, which means that the correct process must be followed. 

Let’s start with 1) Substantial fairness:

Labour Guide says that the word “abscond” means to leave “hurriedly and secretly” according to the Oxford Dictionary. In other words, it means that a person does not have the intention to return to work. 

As you told your site manager that you wanted to take sick leave, you were clearly intending to come back to work. As the site manager was at least told that you would be on sick leave, even if he denies giving you permission, your absence from 2 April to 5 April cannot be seen as absconding. 

Denosa says that a worker can look at their employment contract or their employee handbook to verify exactly how many days of uncommunicated absence trigger an absconding process at their workplace.

Because you honestly believed that the site manager permitted you verbally, you had no intention of leaving your job. So it seems that it was a misunderstanding between you and the site manager, rather than intentional misconduct on your part.

The LRA does not allow immediate or automatic dismissal under these circumstances after a three-day absence. Even if an employer's internal disciplinary policy states that three days of unauthorised absence is a fireable offence, the employer cannot simply end your employment.

2. Procedural fairness:

According to Schedule 8 of the LRA (Code of Good Practice: Dismissal), the employer must issue a notice to attend a disciplinary inquiry. 

At the disciplinary enquiry, you have the right to tell your side of the story and explain that you believed the site manager had agreed that you could take sick leave. That misunderstanding should be cleared up before any decision is made. 

Under the Basic Conditions of Employment Act (BCEA), an employer can request a medical certificate for absences longer than two consecutive days to qualify for paid sick leave. Did you bring a sick certificate when you returned to work? Under the BCEA, employers are not required to pay for sick leave if you are absent for more than two consecutive days and fail to provide a medical certificate upon request.

But dismissal is considered a last resort. If you have a clean disciplinary record, you should be given a written warning after a three-day absence rather than being instantly dismissed. 

If your employer dismisses you without holding a proper hearing, or ignores the fact that you believe that the site manager gave his verbal permission, you can refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or a relevant bargaining council within 30 days of the dismissal. These are the CCMA contact details:

• CCMA National Call Centre: 0861 16 16 16

• CCMA National Office (Johannesburg): 011 377 6650 / 011 220 5000

• CCMA Cape Town: 021 469 0111 or via email at ctn@ccma.org.za. 

Wishing you the best,
Athalie