Desertion – my employee is not coming back, what now?

Employers are often confronted with the situation where employees are absent without any word of their whereabouts. This has a huge impact on a business’s normal operations and bottom line, as most employers don’t have the luxury of spare capacity concerning their workforce. Absence from the workplace must be addressed effectively to ensure productivity. The Labour Relations Act’s Code of Good Practice provides guidelines to ensure fair labour practice in matters where dismissal is a possibility, including desertion.

When is an employee a deserter?

Desertion is when an employee who is absent from work for more than five days, without notifying the employer and with no intention of returning to the workplace. Absence where the employee does not turn up for work at all, can be very difficult to manage. All employees have an obligation to inform their employers of their absence by any means possible. It is very seldom that there are no means whatsoever available of notifying the employer of the absence.

What must the employer do?

It is extremely important that the employer must be able to prove that the employee has no intention of returning to work. Therefore the employer must attempt to contact the employee in order to establish the reason for the employee’s absence, to urge the employee to return to work and also inform the employee of the consequences of his/her absence. To have proof of these attempts to contact the employee, we advise employers to send an sms or a letter to the employee’s last known address. It is the employee’s duty to notify the employer of a change of address.

After the initial attempts to contact the employee, disciplinary measures can be taken if the employee does not return to work. The employer must send a notice of disciplinary hearing to all last known contact details of the employee. A hearing must be held and may proceed in absentia, after which the employee may then be dismissed.

If the employee does return to work, the employer may request reasons for the employee’s absence and failure to notify the employer. Should the employee be unable to provide valid reasons, the employer may proceed with disciplinary action as per the disciplinary code. Valid reasons for not being at work and failing to inform the employer, could include hospitalisation or arrest for an offence which is not work related.

The disciplinary hearing

During the disciplinary hearing the employer must prove the desertion and provide evidence attesting to the employee’s unauthorised absence, as well as the steps taken by the employer to contact the employee. The chairperson at the hearing then evaluates all evidence presented and proceeds to make a finding. When the employee is found guilty of absenteeism, the employer must notify the employee of his/her sanction according to the disciplinary code.

There are various factors to consider when deciding on the appropriate sanction in cases of desertion:

  • length of absence;
  • reason for absence;
  • attempts made by the employee to contact the employer during his/her absence;
  • previous warnings for absenteeism;
  • whether there is a rule or policy requiring the employee to contact his manager/employer regarding his absence;
  • the employee’s position and type of work done; and
  • whether the employer had to replace the employee.

Should the employer pay the deserter up until the date of dismissal?

The principle of no work, no pay applies. The employee is only entitled to payment of wages up to the last date that he/she physically worked. Any accrued leave pay due to the employee at the time of dismissal should also be paid.

Employees who desert the workplace, often approach the Commission for Conciliation, Mediation and Arbitration (“CCMA”) stating unfair dismissal. The onus is on the employer to prove that a fair process was followed and that the assumption that the employee did not intend to return to work was reasonable under the circumstances. It is therefore important to follow the prescribed steps to manage labour as a business risk effectively.

Contact the LWO Employers Organisation at 0861 101 828 | info@lwo.co.za | www.lwo.co.za for information or assistance. We are available 24/7.

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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