Addressing Absenteeism, Abscondment, and Desertion: A Practical Guide for Employers
INTRODUCTION
In the fast-paced and often busy months of December and January, managing employee absenteeism, abscondment, and desertion can become a significant challenge for employers. While annual leave is a well-deserved break for employees, it is not uncommon for some individuals to fail to return to work on the expected date, potentially leading to disruption in the workplace. Absenteeism, abscondment, and desertion each represent different forms of unauthorised absence, but they require different approaches from employers to ensure fair and lawful outcomes.
Understanding the legal implications of these situations is crucial for employers to act within the bounds of the Labour Relations Act (LRA). Thus ensuring both procedural and substantive fairness when taking disciplinary action. Absenteeism, though a short-term issue, can lead to further complications if not addressed correctly. While abscondment and desertion involve more severe breaches of the employment contract, requiring employers to consider the potential for repudiation and the termination of the contract.
This article aims to provide employers with a practical framework for addressing absenteeism, abscondment, and desertion in a fair and legally compliant manner. It will explore key concepts, including the distinctions between these forms of absence, the necessary steps for investigation and discipline, and the importance of following proper procedures to avoid legal pitfalls. By taking proactive and informed steps, employers can effectively manage these situations while protecting their business interests and maintaining a productive workforce.
- DIFFERENTIATING BETWEEN ABSENTEEISM, ABSCONDMENT, AND DESERTION
- Absenteeism
Absenteeism refers to a short period of unauthorized absence from work. It does not imply an intention to abandon the job.
Example: An employee fails to show up for work for one day without informing their manager. They later return, stating that they had a personal emergency but did not communicate it.
In the case of Litha Malimba v Sun International Management Limited and Others, JR1594/18 (2021), the employee was dismissed for absenteeism. On 26 January 2018, the employee, Mr. Malimba reported for work without his staff ID card. He was instructed to go home to retrieve it and return the following day. However, on 27 January 2018, he failed to report for work and did not inform management of his absence. Mr. Malimba had been on a final written warning for absenteeism and refused to cooperate with the employer’s request to authorize a salary deduction for his absence. The Labour Court upheld his dismissal, emphasizing that absenteeism, particularly in cases of repeated disregard for company policies and prior warnings, can justify termination.
Employer’s action:
- Conduct a disciplinary hearing to address the absence.
- Allow the employee to explain their reasons for the absence.
- Decide on appropriate sanction, which may include a warning, depending on the code of conduct and the circumstances.
- Abscondment
Abscondment occurs when an employee is absent from work without authorization for an unreasonably long period but intends to return to work at some point.
Example: An employee disappears for five days without informing their employer but later reappears, citing personal issues or family emergencies as reasons for their absence.
Employer action:
- Contact the employee to find their whereabouts.
- Send a letter instructing the employee to return on a certain day, failure which, could lead to disciplinary action.
- Upon their return, or before, institute disciplinary action, and caution the employee against no-attendance of the hearing.
- If the employee does not attend and no valid reason is provided for the prolonged absence, termination of employment may be considered.
- Desertion
Desertion involves an employee leaving the workplace or failing to return, with a clear intention of not resuming work. The intention must be evident from the employee’s actions.
Example: An employee who has been absent for three weeks relocates to another province or begins working for a different employer without informing their current employer.
Employer’s action:
- Contact the employee and instruct them to return to work.
- If there is no response to the instruction, send written notice to the employee’s last known address, instructing them to return to work. In addition, inform them that failure to return could result in disciplinary action.
- Where there is still no response, send notice of the company’s intention to institute disciplinary action, including time and date of the hearing.
- If the employee fails to respond, proceed with termination based on repudiation of the employment contract.
Desertion: Legal precedents and court rulings
The courts have held that desertion amounts to repudiation of the employment contract, which allows the employer the right to treat the contract as void by cancelling it. However, repudiation does not automatically end the contract. The employer must act to formally accept the repudiation, which leads to the termination of the employment relationship.
In SACWU v Dyasi (2001), the Labour Appeal Court (LAC) ruled that the dismissal of an employee who had deserted was procedurally unfair because the employer failed to hold a disciplinary inquiry before dismissing the employee. However, the court acknowledged that if the employee’s whereabouts were unknown, the employer had little choice but to accept the repudiation of the contract.
Similarly, in Khulani Fidelity Services Group v Commission for Conciliation Mediation and Arbitration (2009), the Labour Court held that desertion is a form of absence without authorization, with the intention to permanently separate from employment. The Court further explained that a short period of absence may not be sufficient to establish desertion, but prolonged absence, particularly when coupled with the employee’s failure to communicate, could indicate an intention not to return.
The case of SABC v CCMA (2001) also highlighted the difficulty in determining whether an unexplained absence constitutes desertion. The court made it clear that absence alone is not enough to conclude desertion; the intention to remain away permanently must be inferred from the surrounding circumstances. If the absence is prolonged without communication, it could serve as evidence of desertion.
The Labour Appeal Court, in SABC v CCMA (LAC), dealt with procedural fairness in the context of desertion. It ruled that whether the employer must hold a disciplinary hearing before dismissing an employee who has deserted depends on the circumstances and practicality of doing so. The court found that the employer had placed the employee on terms to report for work but failed to follow up when the employee did not comply. It emphasized that the employee should have contacted the employer after the specified date to show cause for why they should not be dismissed.
- EMPLOYER’S DUTY TO ACT FAIRLY
The general stance on desertion is that, just like any other form of misconduct, employers must act fairly in responding to the situation. This involves investigating the reasons and circumstances of the absence and weighing whether dismissal is a fair sanction. If the employer does not follow a fair procedure, the dismissal may be regarded as unfair.
CONCLUSION
Managing absenteeism, abscondment, and desertion requires employers to strike a delicate balance between addressing operational disruptions and ensuring fairness in the application of labour laws. While absenteeism may be resolved through clear communication and appropriate disciplinary measures, absconding and desertion often call for more structured interventions, including formal inquiries and potential contract termination.
Employers must remain proactive in documenting their efforts to contact absent employees, investigating the reasons for their absence, and providing opportunities for employees to respond. By adhering to the principles of procedural and substantive fairness, as required by the Labour Relations Act, employers can minimize legal risks while maintaining a consistent and equitable workplace.
