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In Article Archive, Private by Jan Truter16 Comments

When an employee is absent for several days without communicating with the employer, the incorrect assumption is often made that the employee has deserted and has therefore dismissed himself.

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  1. An employees contract states the she will be asked to work on weekends if needed. Her car has been faulty recently of which the supervisor was made aware. She was asked to come in on the weekend but could not due to lack of transport. She did assist over the tele to fix the problem. However she is no w disgruntled that we brought up her contract claiming dessertion. She has stated that her vehicle broke due to unforseen circumstances. Are we within our rights to call her in on not showing up

    1. Author

      Reply to Cara: It is clearly not a matter of desertion or absconsion. One should be careful to evaluate the validity of her excuse before taking disciplinary action.

  2. 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.

    1. Author

      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.

  3. 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.

    1. 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.

  4. 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?

  5. 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?

    1. Author

      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.

  6. 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?

    1. Author

      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.

  7. 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?

    1. Author

      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.

  8. 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

    1. Author

      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.

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