Desertion or abscondment often occurs in the workplace. It is defined as when the employee is absent form the workplace for five or more consecutive days with the intentions of not returning.
We advise employers to include a repudiation clause in the employment contract so that when the above happens, the employee will be deemed to have repudiated the contract. The employer’s disciplinary code and procedures should also make provision for desertion or abscondment. It should clearly stipulate that it may lead to their dismissal.
Does this mean that the employer can dismiss immediately?
The misconception of desertion or abscondment is that the employee dismissed him-/herself. This can however be the case. An employer always has to proceed with a disciplinary hearing prior to dismissing an employee. Under no circumstances can an employer merely dismiss an employee without following the correct procedures.
What procedures must the employer follow?
It is necessary for the employer to send an ultimatum to the employee to resume duties. If the employee does not respond to the ultimatum by either reporting for duty or notifying the employer of his/her whereabouts, the employer should send a notice of disciplinary hearing to the employee, clearly setting out the alleged misconduct.
How should the employer send the notice if the whereabouts are unknown?
If it is impossible to serve the notice of disciplinary hearing on the employee personally, the employer can send it via text message to the employee’s cell phone. A clear photograph of the notice together with a procedural application form must be sent to the employee. It is important to keep proof that the documentation was sent. If the employee does not have a cell phone, it should be sent via registered post to the last known address of the employee. It is the employee’s duty to inform the employer of any changes in the address and contact details.
What if the employee does not attend the disciplinary hearing?
If there is sufficient proof that the employee received the notice of disciplinary hearing, the hearing should proceed in the employee’s absence. The independent chairperson will make a ruling based on the evidence presented by the employer. An employee may be dismissed in his/her absence. Failing to comply with the above procedures, may lead to procedural unfairness if an employee refers a matter to the CCMA.
Employers must take care to always follow the correct procedures in terms of labour law.
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LWO Regsadviseur - LWO Legal Advisor
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