With employers reopening for business after a well-deserved break during the December closure, many employers are faced with employees failing to report for duty. Most employers would agree that there are disruptions in operation due to employees failing to report for duty.
The courts have endorsed the concept of corrective or progressive discipline, especially regarding less serious misconduct. In terms of Codes of Good Practice, employers should make the necessary efforts to correct employees’ behaviour through a system of graduated disciplinary measures such as counselling and warnings. Serious or repeated misconduct may warrant a final warning or any other action short of dismissal, e.g. suspension for a reasonable period without remuneration or demotion.
Employees who fail to report for duty can sometimes be a frustrating process to follow because there can be many reasons why employees are absent. However, to take the correct disciplinary actions, it is of great importance that we differentiate between the following:
Absenteeism:
Absenteeism can be summarised as a situation where an employee is absent from work for short periods, including unauthorised absence, arriving late, leaving early and taking extended meal intervals.
Example:
Employee A is absent from work for three days and returns to work on the 4th day. The employee explains to the employer that he fell sick upon his return to work. If the employee cannot provide the necessary proof that he was sick, the employer may take disciplinary actions against the employee for unauthorised absence.
Abscondment:
Abscondment can be described as when an employee is absent from work for a prolonged time that warrants the inference that the employee does not intend to resume work.
Example:
Employee B fails to report for duty for eight months. A co-worker and family member informs the employer that the employee has been incarcerated due to the contravention of a protection order. The employee then reports for duty after being released from prison.
Desertion:
Desertion occurs when the employee communicates an unequivocal intention not to return to work. John Grogan defines desertion as ‘deemed to have taken place when the employee has stated expressly, or by implication, that he does not intend to return to work.
Example:
Employee C fails to report for duty for an uninterrupted period of 10 days without any communication regarding his whereabouts or expected date of return. Upon further investigation, the employer found that the employee is currently working for a different employer.
The intention of the employee not to return is a crucial element to prove with regards to desertion. In comparison to abscondment, desertion consists of absence without authorisation with the intent to remain permanently away from employment. The intent can be inferred from the circumstances.
In the recent case of Okhahlamba Local Municipality v Mabuya and others, the dismissal was found to be substantively unfair, having reasoned that the municipality had failed to prove that the respondent had no intention of ever resuming work, which he said was a requirement of dismissal for abscondment, and that the municipality knew of his whereabouts. The arbitrator also ruled the dismissal to be procedurally unfair because the respondent had been denied a hearing.
Where an employee has absconded, the employer has an obligation to give effect to the audi alteram partem rule before the employer can decide to dismiss.
Should you require more information in this regard, contact your SEESA Labour Legal Advisor. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the author:
Theo-Neil Williams stared his career at SEESA in 2018 and is currently a BEE & Labour Legal Advisor at SEESA’s East London branch. He obtained his LLB degree from the UFS and is an admitted attorney in the High Court of South Africa. Prior to joining SEESA he practiced as an attorney specialising in Civil litigation.
Resources:
- Jammin Retail (Pty) Ltd and Mokwane (LC Case no JR 2784/08);
- Khulani Fidelity Services Group v CCMA (LC JR 783/07);
- Okhahlamba Local Municipality v Mabuya and others – (2021) LC 1.11.55 also reported at [2021] 11 BLLR 1115 (LC);
- Mofokeng and KSP Pumps (2003) 24 ILJ 1756 (BCA);
- Trident Steel (Pty) Ltd v CCMA & Others (2005) 26 ILJ 1519 (LC);
- Grogan J, Dismissal discrimination & unfair practices. Juta & Company Ltd, 2005;
- Schedule 8 of the Labour Relations Act 66 of 1995.