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 email@example.com.