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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Workplace harassment and intimidation seems to remain prevalent issues in many workplaces.  South Africa’s Constitution, along with other legislation such as the Employment Equity Act, 1998 (EEA) and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code), issued under the EEA, prohibits any form of harassment or intimidation in the workplace.

Harassment

Harassment is unwanted conduct that impairs dignity, creates a hostile work environment for one or more employees or is calculated to, or has the effect of inducing submission by actual or threatened adverse consequences and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA, which includes both listed grounds and an arbitrary ground.

Common examples in the workplace:

• Physical harassment – includes physical attacks, simulated or threatened violence and gestures.
• Verbal bullying – includes threats, shaming, hostile teasing, insults, negative judgement, criticism and inappropriate language (racist/sexist/homophobic language).
• Psychological harassment – harassment in the workplace may be associated with emotional abuse and involves behaviour that has serious negative psychological consequences for the complainant such as is often the case with verbal abuse, bullying and mobbing and includes emotional abuse, slandering, humiliation, exclusion, persecution, surveillance and more.
• Bullying – behaviour in which someone repeatedly causes another person injury or discomfort.
• Mobbing – a form of harassment by a group of people targeted at one or more individuals.

Intimidation

Intimidation is the intentional behaviour that would cause a person of ordinary sensibilities to fear injury or harm. A common example in the workplace is where an employee points a knife at another employee and threatens to kill him.

Sexual harassment

The most well-known form of harassment is sexual harassment, which is a serious offence and is also deemed to be a form of unfair discrimination. Described as unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome. This behaviour includes any physical, verbal or non-verbal sexual conduct that makes the victim feel uncomfortable.

Sexual harassment violates the rights of the victim to:

• A work environment free from sexual harassment.
• Be treated with respect and dignity in the workplace.
• Equality and not to be discriminated against on the grounds of sex.

Behaviour will only be considered sexual harassment if it has a sexually unwanted undertone. The unwanted nature is distinguished from behaviour that is welcomed and reciprocated.

Sexual attention becomes sexual harassment when:

• The harassment is based on one or more prohibited grounds, namely: sex, gender, and/or sexual orientation.
• The sexual conduct is unwanted or unacceptable.
• The nature and extent of the conduct is such that the perpetrator reasonably ought to have known it could be regarded as unwanted sexual conduct.
• When assessed objectively, from the complainant’s perspective, the conduct negatively impacted the employee and such assessment must be informed by societal values as reflected in our constitutional era.

Common examples of sexual harassment might include:

• Physical touching (touching, kissing, sexual assault and rape).
• Sexual advances, threats, inappropriate comments and more.

The employer

The EEA stipulates that an employer violates the law if he/she fails to take the necessary steps in cases of alleged harassment.  Section 60 of the EEA holds an employer liable for the unlawful, discriminatory conduct of its workers. Therefore, as soon as allegations of harassment have been reported to an employer, the employer has an obligation to eliminate the conduct. Employers have an obligation to protect employees from all forms of harassment.

Employers should implement an internal workplace policy that highlights and prohibits this type of behaviour and act swiftly when an incident is reported. Each individual has the right to be treated with dignity and respect. It must be clear to all employees in the workplace that harassment will not be tolerated, how it should be reported and how it will be dealt with.

Please contact the LWO for assistance in order to ensure that a fair and proper procedure is followed.

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Insubordination is when an employee challenges the employer’s authority and commonly occurs when an employee wilfully refuses to obey a lawful and reasonable instruction. Employees have a legal duty to obey any valid instruction within their role, and defying such an instruction effectively challenges the authority that underpins the employment relationship.

Whilst the Labour Relations Act, Act 66 of 1995 (LRA) does not define insubordination, its Code of Good Practice on Dismissal recognises gross insubordination as serious misconduct. Insubordination can be direct (e.g., saying “I refuse”) or passive (e.g., deliberately ignoring an instruction).

Insubordination vs gross insubordination

Not all defiance is equally severe. Insubordination itself is misconduct that typically warrants corrective measures (like warnings or counselling) rather than immediate dismissal. By contrast, gross insubordination involves an extreme breach of duty: it is a deliberate, serious and often repeated defiance that undermines trust. The LRA’s code of good practice explicitly warns that an employer should not dismiss an employee for a first offence unless the misconduct is so serious that it makes the continued employment relationship intolerable. The seriousness of the insubordination must be assessed in the light of the implications for the employer and against the impact it has on the employment relationship.  Only when the defiance is deliberate and serious does it rise to gross insubordination, which might justify dismissal.

Legal and procedural steps

Legislation requires that any disciplinary action be for a fair reason and follow a fair procedure:

• Employers should begin by thoroughly investigating and documenting the incident. This includes recording what instruction was given, how it was communicated, the employee’s response, dates, witnesses, and any supporting evidence.
• If the employer considers disciplinary action, issue the employee with a formal notice to attend a disciplinary hearing detailing the specific charge of insubordination. The notice should explain which instruction was defied and why it is considered misconduct.
• At the disciplinary hearing, the employee must be allowed to respond to the allegation and may be assisted by a trade union representative or fellow employee. Employers should present the evidence fairly and objectively, ensuring that the instruction in question was lawful and reasonable.
• Throughout the process, the employer must follow their internal disciplinary code, applying consistent rules and sanctions. Once a decision is made, communicate it in writing. If dismissal is the outcome, the dismissal letter must outline the reasons. All records of the process should be kept in case of future disputes.

Disciplinary measures and best practices

Progressive discipline is a key principle in addressing insubordination.  In most cases, employers follow a structured process that begins with less severe measures and escalates only if necessary.  Dismissal should generally be considered as a last resort, appropriate only for serious or repeated misconduct.

Initial steps may involve informal counselling or verbal guidance to correct the behaviour and reinforce expectations. If the issue continues or is more serious, formal written notices may be issued. These should clearly describe the conduct in question and the consequences of any further incidents. Where the behaviour persists or where the insubordination is of a serious nature, the employer may escalate the matter through additional disciplinary steps, which could ultimately lead to dismissal.

Throughout this process, employers should act consistently, treating similar cases alike and applying fair procedures. Each step should be properly documented, including any meetings or warnings issued. If dismissal is the outcome, the reasons must be clearly communicated, and the employer must be able to demonstrate that the decision followed a fair process.

By combining clear policies with fair, documented procedure, employers can address insubordination effectively. Upholding mutual respect and following the statutory discipline framework helps ensure employees understand their duties.

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It happens that an employee is hired, but the employment contract is simply not signed. Employees are often under the mistaken impression that if the employment contract is not signed, he/she cannot be bound by the same rules and regulations as other employees who have signed the employment contract.

The employer-employee relationship is established when the employee and employer agree on terms of employment. The employee can therefore still be disciplined if the workplace rules and disciplinary code are violated, provided that the employer can prove that the rules existed, were reasonable, were consistently applied, the employee broke the rules and the employee had reasonable knowledge of the rules and regulations in the workplace.

What does the law say?

According to the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA), an employee must be notified in writing on the first day of employment of the details of the employment relationship. The BCEA also provides a detailed list of what must be included in this notice.

A written employment contract that is signed by both parties formalises the relationship and gives clarity to all parties. Without an employment contract, it can be difficult to prove that the employee agreed to certain terms such as shortened mealtimes, or even the period in cases of fixed-term employment contracts where the contract was only intended for a specific time/project.

Where do I start as an employer?

Resolve the situation by following these steps:

• Consult with the employee who does not want to sign the employment contract to explain the contract to him/her again and obtain reasons for the refusal;
• Give the employee a reasonable time to submit written reasons why he/she does not want to sign the contract, or to sign the contract if there is no reason not to sign it;
• If no reason/objection is given why the contract is not signed, the employer may request the employee to sign the contract again.
• If reasons can be provided, this can be discussed between the employee and employer.

The employer may take further steps to confirm the employment relationship and the rights of the employee concerned in terms of the BCEA by addressing a letter to the employee confirming the terms and conditions as prescribed in the BCEA. The employer will comply with the provisions of the BCEA if he provides the employee with a copy of the draft contract with a note that the employee has refused to sign it.

We always recommend that employers keep an attendance register and minutes for all consultations indicating that the employer followed a fair process and that the employee continued to work according to the terms of the contract, even if the contract was not signed. Should the employee verbally acknowledge his/her rights, an employment relationship is established and the person is then considered to be an employee.

Please note that an employer cannot simply dismiss an employee because he/she did not want to sign the employment contract. If an employer terminates the employment contract, whether concluded verbally or in writing, this may result in a referral of an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The employee may then be entitled to reinstatement or compensation, even if they have not yet started working. However, if the correct processes are followed, the situation can easily be rectified and/or avoided.

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In South Africa, incapacity as a ground for dismissal relates to an employee’s inability to effectively perform their duties and responsibilities, mainly due to poor work performance, ill health or injury. The Labour Relations Act, Act 66 of 1995 (LRA) regulates this dismissal and requires it to be substantively and procedurally fair.

Categories of incapacity

Dismissal on grounds of incapacity is mainly placed into two categories:

• Poor work performance: Poor work performance refers to situations where an employee consistently fails to meet the required standards of their job. This incompetence does not stem from misconduct, but from an employee’s lack of skills, knowledge, or ability to perform their duties.

• Ill health or injury: When an employee is unable to perform their duties due to physical or mental health challenges, or an injury sustained, this form of incapacity becomes a possible ground for dismissal.

Other common examples of incapacity include operational incapacity, which refers to when an employee is unable to comply with an inherent requirement, provision or condition of their employment, or of legislation. For example, if it is absolutely essential for an employee to have their own reliable vehicle to carry out their work duties, this could lead to a possible case of incapacity if the employee no longer has a vehicle at their disposal.

Fairness

The LRA provides the basis for dismissal on grounds of incapacity and emphasises fairness and fair procedures. Section 188 of the LRA provides that a dismissal must be both substantively and procedurally fair. Furthermore, Schedule 8 of the LRA, the Code of Good Practice: Dismissal, provides guidelines on how to deal with this type of dismissal.

• Substantive fairness requires that there must be a valid reason for the dismissal. In the case of incapacity due to poor work performance, the employer must be able to prove that the employee’s performance was below the expected standard, that the employee was aware of the standard, received reasonable training and assistance to achieve the standard, and that the employee’s performance negatively affected the business. In the case of ill health or injury, the employer must be able to prove that the employee’s medical and/or psychological condition does not allow them to fulfil their contractual obligations.

• Procedural fairness involves the employee being consulted, informed of their shortcomings or health problems and given the opportunity to improve or redress. In the event of poor work performance, the employer must offer training, guidance or additional resources to help the employee meet the required standard. In cases of ill health, the employer must explore alternative roles or adjustments before dismissal can be considered.

Case study

In the case of Parexel International (Pty) Ltd v Chakane and Others [2019] 11 BLLR 1245 (LAC), the Labour Appeal Court heard a case involving an employee who had been absent from work for nine months due to an on-the-job injury. The court held that an employer cannot be expected to tolerate an employee’s prolonged absence due to ill health and that an employer is not obliged to keep the employee’s job open indefinitely. However, the court also emphasised the importance of thorough disability investigations to assess the employee’s condition and explore possible adjustments before dismissal can be considered as an absolute last resort.

Legislation requires employers to make reasonable accommodations for employees with disabilities or health conditions, particularly where these arise from the scope of their work. This includes adjusting working hours, modifying duties, or providing assistive technology. Failure to consider such measures may render dismissal on grounds of incapacity unfair.

Incapacity as a ground for dismissal requires employers to strike a balance between operational needs and the rights of employees. Labour law requires that dismissals on this ground be handled with fairness and empathy. Employers must follow fair procedures, provide opportunities for improvement and consider reasonable accommodation before terminating an employee’s employment as an absolute last resort.

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