What is desertion?
Desertion is when an employee remains absent from work for more than 5 consecutive days, without notifying the employer of his/her reason for the absence, and who does not have the intention of returning to work.
In SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) it was held that: “It is not desertion when an employee who is absent from work intends to return to work. Desertion necessarily entails the employee’s intention to no longer return to work. The employer would have to establish this intention in a fair process”.
What do you do when an employee has deserted?
The first step would be to make contact with the employee to determine if he/she has the intention to return to work or not. It could be that the employee is hospitalised or has an illness. If this employee can prove that he/she has a valid reason for their absence and has the intention to work they have not deserted.
A registered letter can be sent to the employee’s last known address informing him/her that he should contact the company ASAP with regards to his/her absence from work.
If you are unsure if the employee will return and you need to fill their position, you may employ someone to fulfil the position on a fixed-term contract until the employee returns to duty.
Therefore, you cannot dismiss an employee who has been off sick for a few days without notification and who returns to work with a valid medical certificate.
If an employee does not report for duty without permission for their absence, you are entitled to remove them from the payroll after a reasonable period of time has elapsed. There is no statutory definition of “a reasonable time”, but it is generally considered to be 3 to 5 days.
The Audi Artem Partem rule
In some instances, the employee may arrive after a few months’ absence. The employee is entitled to present his case to you before being terminated from service. If the employee does not avail himself, you may follow the disciplinary procedure in absentia before dismissing him.
ABOUT THE AUTHOR
Sanvir Diplall is a SEESA Labour Legal Advisor at the Durban office. His qualifications include a BA degree and an LLB degree and he is currently completing his Masters Degree in Labour Law at the University of KwaZulu-Natal.