Dealing with desertion

Desertion is a serious workplace issue that employers are often faced with. If not managed correctly, it can result in costly disputes for employers. In the context of South African labour law, desertion differs significantly from general absenteeism and employers must understand this distinction to avoid procedural pitfalls when dealing with absent employees. Desertion may have a huge impact on a business’s normal operations and the profitability and sustainability of the employer’s business. It is imperative that employers deal correctly and effectively with deserting employees.

What is desertion?

Desertion occurs when an employee is absent from work without permission and with the intention of never returning to work. This intention to abandon the job permanently is what separates desertion from ordinary absenteeism, which is often temporary or explained by unforeseen circumstances.

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 absent 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 and of not returning to work. To have proof of these attempts to contact the employee, we advise employers to send an SMS, WhatsApp, email 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 and the employer may use the employee’s last known address or contact information.

Similarly, all employees have an obligation to inform their employers of their absence from work. It is rare for an employee to have absolutely no way of informing the employer about their absence especially since electronic communication has become more accessible and affordable to more employees than in the past. This obligation however does not mean that the employer must do nothing.

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 the employee’s last known contact details. A disciplinary hearing must be held on the scheduled day and may proceed in absentia if the employee does not show up for the hearing, after which the employee may then also 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 incapacity due to hospitalisation or arrest.

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. If the employee is found guilty of desertion, the employer must notify the employee of the outcome and sanction according to the employer’s disciplinary code.

If a dispute is referred the onus is on the employer to prove at the CCMA or Labour Court that a fair process was followed and that the finding that the employee did not intend to return to work was reasonable under the circumstances.

Desertion can disrupt an employer’s operations, but a hasty response can expose employers to legal risk. By understanding the legal requirements and applying a procedurally fair process, employers can navigate these situations effectively and lawfully. When in doubt, consult with an LWO legal advisor today.

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