The taxi driver who did not show up for work

If an employee is in material breach of the employment contract, this may result in summary dismissal. ‎In this case, the issue before the Western High Court was whether a taxi owner was justified in ‎summarily dismissing one of his taxi drivers who had failed to show up for two shifts.‎

The case concerned a taxi driver whose normal task was to service the contract with the municipality, ‎but now he had agreed to work a few extra weekend shifts because of the Christmas party weekend. On ‎realising that he would not be picked up at his home on Friday, 11 December – a requirement he had ‎expressed – he decided not to show up for work. The next day, the taxi driver had a telephone ‎conversation with the taxi owner. It is unclear what was said during the conversation, but in any case the ‎taxi driver did not show up for work on Saturday, 12 December, either. ‎

On 13 December, the plan showing next week's shifts was sent to the taxi driver, and the plan had him ‎working the following weekend. The taxi driver texted the taxi owner that he thought he would no ‎longer be working weekends. The taxi owner replied: "… you will be deleted from the Friday and ‎Saturday evening shifts, so you just do your municipal shift". On 14 December he was summarily ‎dismissed.‎

Legitimate expectation?‎
Before the High Court, the taxi owner argued that the driver was not entitled to be picked up from his ‎home, that he had received a warning over the telephone Saturday and that – even if he had received ‎no such warning – the owner was justified in summarily dismissing him for failure to show.‎

In the High Court's opinion, the taxi driver's failure to show was unjustified and sufficient to warrant a ‎summary dismissal. However, the High Court also held that the wording of the text sent by the taxi ‎owner on 13 December had given the driver a legitimate expectation that his failure to show up for his ‎shifts on 11 and 12 December would not result in summary dismissal. On those grounds, the taxi owner ‎was ordered to pay salary in the notice period and compensation for unfair summary dismissal.

Norrbom Vinding notes

• that the decision illustrates that if an employee is in material breach of the employment contract by ‎failing to show up for work, the employer will generally be entitled to summarily dismiss; but ‎
• that in special cases, the employer may lose this entitlement, e.g. if the employee has been given a ‎legitimate expectation that his failure to show will not result in summary dismissal.