When an employee is absent for several days without communicating with the employer, the assumption is often made that the employee has deserted or “absconded” and has therefore dismissed himself or herself. Employers then find out the hard way that their assumption was incorrect.
It does occasionally happen that an employee leaves without the intention of returning. This amounts to desertion. Usually there would be some indication of such intention, either because this is clearly communicated to the employer or the employee demonstrates his or her intention through the employee’s conduct, e.g. vacating the office, working for another employer or mentioning it to a third party. In most cases, though, the employee has every intention of returning to work. There could be several other reasons for an employee’s absence and for the employee’s failure to communicate with the employer, e.g. serious injury or illness, personal or family crisis and being stuck in a remote area without means of communication.
Some employers have a workplace rule or policy that provides that an employee’s services would be automatically terminated if the employee has been absent for a certain period without prior permission. In the public sector section 17(5) of the Public Service Act of 1994 provides that an official who absents himself or herself from his or her official duties without permission for a period exceeding one calendar month, will be deemed to have been dismissed from the public service on the basis of misconduct.
Such a rule or policy cannot be enforced in other sectors. It remains a popular misperception, though, notwithstanding the fact that employers have repeatedly burnt their fingers at the CCMA. A recent case in point is that of Mtshinindo vs Cashbuild, Hillfox. The employee was absent from a Monday to a Wednesday due to illness. According to the evidence the employee’s wife had phoned the employer to advise that he was consulting a Sangoma. The employer had a policy that stated that an employee is deemed to have absconded if he/she is absent from work for 3 days or more without permission. When the employee returned to work on the Thursday, the manager told him that his services had been terminated in terms of the policy. The employee denied that he had absconded. The employer, on the other hand, denied having dismissed the employee.
According to the CCMA Commissioner the employer failed to show that the employee had abandoned his job without the intention to return. The company policy was therefore of no value to the employer. The Commissioner found that the employee had been summarily dismissed without any procedure being followed and without a good reason. As the employee did not wish to be reinstated, compensation equal to 7 months’ remuneration was awarded.
But what can an employer do if an employee is absent without communicating for an unreasonably long period? The employer can only assume that the employee has deserted once it is clear that the employee has left the work place with the intention of not returning. The problem is that it is not always that easy to establish whether the employee has deserted. What should the employer do?
One approach is to attempt to contact the employee. If successful, the employee must be notified of a hearing to establish the reasons for the employee’s absence from work. The employer may stop paying the employee if all reasonable attempts to contact the employee have failed.
If the employee cannot be contacted but returns to work at some future date, the employee must be afforded the opportunity to state his/her case before a decision is made about the employee’s fate.
Jan Truter of www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or info@labourwise.co.za.
14 Comments
Response to Marise: Based on the facts provided she was not dimissed, but has deserted (indicated her intention not to return to work). The challenge lies in a possible dispute regarding the facts. I suggest that you go to the CCMA. If the matter has been set down for a Con/Arb process, I would suggest you object in writing at least 7 days before the hearing date – the effect of the objection would be that the matter is dealt with informally (conciliation, i.e. an attempt to achieve a settlement) and you don’t have a formal arbitration process where you have to give evidence, etc. If the conciliation (mediation) fails you can seek further advice before going to arbitration.
My domestic worker left work on 7 Feb13 to attend to her mentally sick child. I phoned her to know when she will return, and she said that both children were mentally sick. She said that she did not know when she will return. When we contacted her again she said she must now look after her grandchildren and she will not be coming back. She also said that she wants her “blue card” to claim UIF. I said to her that I need a sick note or a resignation letter. She refused – she doesn’t have money to post letters anyway. When I contacted her again to ask if she is coming back, if not she needs to vacate her room. She said that now she was sick – but still insisted that I fill in the UIF form and post to her. She left on 7 Feb13. I paid her for 3 days family responsibility and 21 days leave. Afterwards it will be a one month unpaid. She told us she was not coming back. On 26 Apr13 she returned to collect her belongings – she said she is here to work again. My husband asked her to take her belongings and leave, as we had to appoint someone else because she said she will not come back. We have small children and work long hours and cannot stay without a domestic worker. Now she has gone to the CCMA and in the dispute she says she does not know why we have dismissed her. We did not dismiss her – she was the one that told us to get someone else in her place. This is just a short discription on my situation. Please can you give advice.
Ideally you should have a written resignation letter from her. In the absence of that you may just confirm in writing (by registered mail or text message) that you confirm her verbal resignation tendered during a phone conversation on a certain date and that you accept that it is not her intention to return to work.
What can one do with domestic workers as she was not at work for 2 weeks now and didnot call to explain what’s going on? I have called her on the third day and she said she has decided not to return back due to medical reasons.
To Mish: I suggest you give me a call to discuss.
Response to Johnathan: There is obviously a general problem with attendance. I suggest you confront him with this in a counselling session and point out that the business cannot indefinitely tolerate this level of unreliability, irrespective of the cause. Also lay down/clarify some rules regarding permission required for absence, communication when it is apparent that he will be absent, the requirement for medical certificates, etc. If the pattern continues, get advice on how to step up the severity of the measures.
Thank you for that Jan. In order to get all my ducks in a row in anticipation of the employees disciplinary hearing, please could you advise me if it was our duty at all to assist the employer with obtaining a hired car? The agreement relating to the vehicle which he was using did form part of his employment contract as an annexure. Secondly, the employee did phone my partner during his absence to enquire whether we would assist him to get the hired car and he would repay the company in monthly instalments. My partner then advised him to come to work a couple of days later (a specific date was given to him) and on this day when he came to work, I handed him the charges and the suspension papers etc. Would dismissal be an appropriate sanction in this case, if not, what would be an appropriate sanction?
Employee has not shown for work for 8 days. However, after 3 days he sent an email stating that he has faced a family crises and that he will report for duty on Monday. He did not report for duty on Monday but emailed some work that he did over the weekend. He was informed to return to work on Tuesday at 08h00. He then stated that he will not be at work as he is now ill, and first has to go to the doctor. He has only been with the business for a month, during which he also went of for dentistry work to be done for 5 days previous. What is the correct course of action here?
Response to Mish: This situation does not amount to desertion by the employee, but you would be able to take disciplinary action based on his being absent without permission. Whether dismissal is justified depends on the employee’s explanation and other circumstances which would become apparent during the course of the disciplinary hearing.
An employee was using a company vehicle. The use of such vehicle was for a certain period of time. The vehicle had a mechanical failure before the period of use had completed. The employee then requested assistance to get a hired car to get to work. We did not agree to it. The employee then did not come to work after advising us of his difficulty to obtain transport to work. He advised us of this via email and telephonically. He was away from work for a couple of days. Can we charge him successfully with absenteeism and accordingly dismiss?
July, I suggest that you call upon the employee via sms (and, if you have an address, by registered mail) to report for work or contact you by a certain date and time, failing which you will assume that she has deserted. In the meantime make use of a temp. If the employee eventually returns and she did not have a good reason for her absence, give her a hearing before confirming her dismissal.
What happens when the employees job involves looking after children? As I work, I need to employ someone else urgently. Am I obliged to only hire temps until the employee decides to return my messages / calls?
Contractually she had an obligation to notify you. She is has clearly repudiated the contract. In principle you would have a claim for damages. The question is whether you consider it worthwhile to pursue the matter further.
Need advice. Had an employee who did not return to school (private) after the holidays and started at another school without notifying me. What action can be taken? Thanks