All employers dictate the normal working hours to be worked by the amployee, and most employment agreements make provision for the normal working hours of the employee. Therefore, there exists a contractual obligation on the employee to report on time for duty.
In the workplace environment it happens that employees arrive late for work. In some instances the employee has “valid” excuses, such as a family emergency, or car trouble.
In other instances, we have to do with employees who regularly and continuously arrive late work work. It is my respectful submission that the employer only has himself to blame for regular and continuous late-coming. I say this because in these instances experience has shown that the employer has failed to take disciplinary steps against the employee coming late for work.
Principles of sound management demand that the employer should take immediate action against employees arriving late for work. The Labour Relations Act require that employers use firm, swift, fair and graduated disciplinary measures to deal with late-coming and other employee misconduct before dismissing the offenders. In other words every employer faced with late-coming should start giving warnings as soon as the problem arises and give a series of more and more serious warnings where the late-coming is repeated.
After the employee has received a series of warnings followed by a final warning and the employee comes late again the employer should convene a formal disciplinary hearing. The hearing should decide whether the employee is indeed guilty of the most recent alleged late-coming and whether dismissal or some other corrective measure is appropriate. The employer should no close a blind eye to repeated acts of late-coming and then, when the employer finally loses patience, lose his/her cool and fire the employee.
Unless there are compelling mitigating circumstances the next logical step after issuing a final warning is normally dismissal but employers are too scared to take this final step because they have heard of employees winning cases at the CCMA in similar cases.
In the case of NCP vs SACWU (1998, 6 BALR 769) the employee was a locomotive driver who arrived late on a number of occasions. He eventually received a final warning for lateness. Thereafter he was again, on several occasions, very late by many hours). Despite this, he was only mildly reprimanded or warned or not disciplined at all. Later, he was late yet again and was dismissed. The arbitrator found the dismissal to be unfair. It appears that the reasons for this startling decision were:
- The employee had initially not been strongly disciplined for lateness after having received a final warning. This led the employee to believe that the final warning had no effect.
- Under these circumstances it was wrong to fire the employee who had been led to believe, by the employer’s inconsistent and confusing conduct, that lateness and repeated late-coming were not serious offences
- The employer had abdicated its duty to take appropriate corrective steps in respect of the employee’s late-coming problem
- The employer had therefore waived its right to dismiss the employee.
In the case of Transwerk vs SATAWU (2000, 8 BALR 993), the employee had received a final warning for late coming. He arrived late for work again and was dismissed on the grounds of his final warning. The arbitrator found the dismissal to be too harsh and reinstated the employee.
This means that, even if an employee has already received a final warning, the employer may still not be entitled to dismiss him for being absent again depending on the circumstances of the case. However, the LRA does not state under which circumstances it is acceptable to dismiss employees who repeat offences after receiving final warnings.
In view of these conflicting decisions, it is understandable that employers may be unwilling to dismiss employees for late-coming. My advice is that late-comers should immediately be warned when they come late for work, obviously with taking into consideration the reasons or causes for the late-coming. If late-coming becomes a tendency with a particular employee, the employer should take more drastics steps. I further suggest that employers should contact an experienced labour attorney ot consultant when an employee has already received a final warning, but before having a disciplinary hearing for a repeated offence.
