DISAPPEARED WITHOUT A TRACE? THE EMPLOYER’S OBLIGATION IN CASE OF DESERTION

Desertion is when an employee is absent from his or her place of work and does not appear to have any intention of returning to the workplace… a tricky circumstance for employers to navigate. Although desertion is a valid reason for fair dismissal, it is not without its difficulties, especially when determining the employee’s intention. 

How can an employer determine whether an employee has no intention to returning to work? In practice, and according to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), it is generally accepted that when an employee is absent for a period of more than five consecutive days without an excuse it qualifies as desertion. There are not many other guidelines to go by. However, it is not to be assumed that just because an employee is absent for more than five consecutive days an employer may dismiss them. The South African labour laws would deem such a dismissal as unfair if the employee is not given the chance to explain him or herself. 

Even though the obligation is on the employee to inform the employer of any reason for not being at work, it does not absolve the employer of the duty to contact the employee. Should the employee not inform the employer of the reason for being absent for more than five consecutive days, the employer has the obligation to attempt to contact the employee before taking any disciplinary steps (even if the employer cannot get hold of the employee). The employer has the duty to determine whether there is a valid reason for the employee’s absence and must inform the employee of the consequences should they continue to stay away from work without permission. 

Acceptable attempts to contact the employee include phoning the employee, emailing the employee, sending someone to the employee’s place of residence or any other reasonable effort to get a message through to the employee. 

Should the employee return to work or make contact with the employer within a reasonable time of their absence, it is the employer’s responsibility to inquire as to the reasons why the employee was absent from work and why they did not notify the employer earlier. The employer can also request proof to support the employee’s claims. The employer can then, based on the explanations given, decide on whether or not further actions against the employee should be taken.

It is clear that if your employee has disappeared without a trace, you as an employer cannot resort to extreme disciplinary action. There are many hoops you have to climb though before the deserted employee can be dismissed. Thus it is always important to seek out labour law advice to ensure that proper steps for handling desertion are taken.