What is the difference between abscondment, unauthorised absence and desertion?

Woensdag, Desember 5th, 2012

First, before an employer can charge an employee, the employer must identify the misconduct. In SACCAWU obo Khakhatiba / Country Meat Market (Pty) Ltd,[1] the commissioner noted that a distinction is to be drawn between abscondment, desertion and absenteeism. Abscondment is deemed to have occurred when the employee has been absent from work for a time that warrants the inference that the employee no longer intends to resume work. Desertion is deemed to take place when the employee expressly intimate that they will not resume work. In all such cases, the onus rests on the employee to explain the absence. Depending on the circumstances and the time period, unauthorised absence will probably not result in a dismissal for a first offence.

This type of offence is also very frequent and common. Abscondment and desertion are serious offences, because it represents a breach of contract. Unauthorised absenteeism can also include taking extended tea breaks or lunch breaks, extended toilet breaks or smoke breaks, being absent for a day or days without consent. Any instance where an employee is away from his workplace without authority, constitutes authorised absenteeism.

The case of Jammin Retail (Pty) Ltd v Mokwane & others[2] again investigated the requirements for abscondment. It confirmed the principles as set in the leading authority for the approach to be adopted when dealing with absconding from work – South African Broadcasting Authority v CCMA.[3]  In this case it was held that where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alterem partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.” The employer must therefore hold an abscondment hearing before it dismisses the employee, after everything possible has been done to locate the employee.

In Mtshinindo v Cashbuild, Hillfox[4], the employee was dismissed after six days’ absence from work. He claimed that his wife had telephoned the manager of the store at which he worked and informed him that he was being treated by a sangoma. The employer claimed that the employee was not dismissed, but that his employment had terminated automatically in terms of the disciplinary code, which deemed an employee to have absconded if he or she was absent from work for longer than three days. The commissioner held that, notwithstanding the provisions of the disciplinary code, absence from work for longer than three days does not necessarily mean that an employee has absconded, or that the termination of his contract does not constitute a dismissal. To prove abscondment, the employer must prove that the employee formed the intention of not resuming work.

The employer failed to prove that the employee did not telephone his manager and the commissioner found that he had been dismissed and rejected the employer’s argument that the contract was terminated automatically. It followed that the dismissal was substantively and procedurally unfair.

In the private sector the leading authority for the approach to be adopted when dealing with abscondment is the South African Broadcasting Authority v CCMA[5]. This case determines that where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty. The employer must therefore try and locate the employee and hold a hearing before the employee is dismissed.

For this purpose the employer must try and find the employee by sending messages or letters to his last known address, instructing the employee to return, failing which he may be dismissed. If the employee is traceable a disciplinary hearing must be convened and the employee must be given notice thereof. An employee’s failure to heed the employer’s written warning to report for work on specified dates or else run the risk of being deemed to have deserted his post, does not excuse the employer from holding a disciplinary hearing prior to the dismissal.

The CCMA and the Courts have found that there was no principle of law to support the view that employees “dismiss themselves” after a certain period of unauthorised absence. In all such cases, the employer exercised the choice of dismissing the employee, and must do so for a fair reason and after a fair procedure has been implemented. Even if the employee cannot be traced, it is advisable to hold a disciplinary hearing in the absence of the employee, in order to ensure that the requirements of fairness have been complied with, especially when the employee chooses not to return to work but to refer an unfair dismissal case to the CCMA. If the employer did not follow the correct procedure, it will not have the opportunity to correct this mistake before it has to prove a fair dismissal to the commissioner.

 

The length of absence, the nature of the employee’s job, previous warnings and whether the employee attempted to contact the employer during the absence, are all relevant factors an employer must consider. For abscondment, evidence must be presented at the hearing to show the employer tried to contact the employee.

                     

 

(Author: Johanette Rheeder: Johanette Rheeder Incorporated)

johanette@jrattorneys.co.za


[1]  (2008) 17 CCMA 8.17.1

[2] (2009) 18 LC 1.11.43

[3] [2002] 8 BLLR 693 (LAC).

[4] (2009) 18 CCMA 8.17.2, reported in [2009] 8 BALR 838 CCMA

[5][2002] 8 BLLR 693 (LAC)

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