Recent cases show an increase in employee absenteeism leading to workers being fired for desertion, notes data analytics firm LexisNexis South Africa.
Kayla Pashiou, managing director at law firm Pashiou Incorporated, for LexisNexis, said that there is a fine line between extended absenteeism and desertion in the workplace.
According to Pashiou, desertion is when an employee is absent from the workplace without the intention to return back to work, whereas extended absenteeism is when an employee is absent from the workplace for an extended period of time but still has the intention to return to the workplace.
Desertion is often difficult for employers to prove, but an employer can still terminate a contract of employment by way of a breach of contract if the correct process is followed, said Pashiou.
“South African labour law does not necessarily place a time period on how long an employee must be absent in order for such absenteeism to be labelled “desertion”.”
The Commission for Conciliation, Mediation and Arbitration (CCMA), however, recommends that it may not be less than five working days.
In South African Broadcasting Corporation V Commission for Conciliation, Mediation & Arbitration & Others (SABC vs CCMA), the respondent employee who had been employed by the SABC was dismissed, but subsequently, the dismissal was withdrawn, said Pashiou.
A meeting took place between the employee and management on 26 November 1997. The employee was orally instructed to resume work. The employee was of the view that in terms of his reinstatement, he was entitled to wait for a written instruction to resume work before doing so, and therefore he did not return to work.
The SABC addressed several letters to him warning him that he was obliged to report for duty.
He was finally given an ultimatum that he would be regarded as having absconded if he did not return to work on 5 December. Subsequently, on 12 January 1998, the SABC terminated his services without holding an enquiry into his desertion, said Pashiou.
The employee referred a dispute to the CCMA concerning his alleged unfair dismissal. The Commissioner found that the employee had been unfairly dismissed and rendered an award in his favour. The SABC sought to set it aside the award on review.
The court considered the SABC’s contention that it had not dismissed the employee and held that the act of desertion does not terminate the contract, but the acceptance thereof does, the legal expert said.
In other words, the termination of the employment contract occurs once the repudiation (breach of contract) is accepted by the employer, said Pashiou.
The same approach was adopted in SACWU v Dyasi, where the Court held that desertion amounts to a repudiation of the contract of employment which the employer is entitled to accept or reject. The acceptance of repudiation amounts to dismissal if an employee once again tends to service, and therefore, no disciplinary enquiry was necessary, said Pashiou.
Summarily, if an employee deserts the workplace, an employer can terminate the contract of employment by way of repudiation.
To do so, Pashiou said that the process would be to:
- Issue the first letter of desertion and place the employee on terms to return to the workplace;
- Deliver this letter via telephone, WhatsApp, email, and by hand, and;
- Should the employee still not return to work, issue a final letter of desertion notifying the employee that the repudiation of his/her contract of employment is accepted and that his/her employment is hereby terminated.
- By Kayla Pashiou, managing director at Pashiou Incorporated, for LexisNexis South Africa.
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