The definition of desertion of Employees from the workplace in South African Labour Law and according to the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”) means that an Employee has left his or her place of work and it is apparent that he or she does not appear to have any intention of returning to the workplace.
What is the period of Desertion before an Employer can assume the Employee has deserted the Workplace?
South African labour law legislation does not state a specific period after which an Employer can assume that an Employee does not intend returning to work. That said, in practice and according to the CCMA it is generally accepted that the period should not be less than five (5) days. The Employee, by nature of the employment relationship with the Employer, has an obligation to inform the Employer of any reason why he or she is or was unable to report for duty at the workplace. For example, that the Employee is or was sick and then to also advise the Employer when he or she intends or is able to return to the workplace. However, in the circumstances where the Employee does not contact his or her Employer, for example for five (5) days, the burden shifts to the Employer who has an obligation to attempt to contact the Employee or his or her next of kin to locate the whereabouts of the Employee.
What are the Employer’s obligations in terms of locating the Employee?
There are a number of ways in which the Employer can attempt to locate the Employee, including but not limited to, calling, emailing, text messaging or sending the Employee correspondence by registered post to the Employee’s last known address, informing him or her that he or she is required to report for duty at the workplace, and that, unless he or she returns to work within a reasonable period (which must be specified in the correspondence), he or she will be regarded as having deserted the workplace and his or her services will be terminated accordingly. When sending the correspondence by registered post, the Employer should ensure to retain proof that the correspondence has been dispatched and delivered. If the Employer does not have an address for the Employee, the Employee should make every effort to get a message to the Employee for example via the Employee’s family members or next of kin if same is stated in the Employee’s personnel file.
What happens if the Employee returns to the workplace after receiving notice to do so?
If the Employee returns to work by the specified date in the above-mentioned correspondence or messages sent via family members or next of kin, the Employer is entitled to enquire as to the reasons why the Employee was absent from work and why he or she did not notify the Employer earlier in respect of the reasons and circumstances which caused the absence without notice. The Employer can then, based on the explanation given, decide whether or not to take disciplinary action against the Employee.
What are the consequences of Desertion?
Once the burden shifts to the Employer to attempt to contact or locate the Employee, the Employer has an obligation to warn the Employee of the possible consequences of desertion and also to determine whether there is a valid reason for the absence of the Employee from the workplace and why the Employee could not contact the Employer. For example, the Employee may have lost his or her phone or the Employee was in hospital. The Employee, once located, must satisfy the Employer that the Employee either had no intention of returning to work or could not return to work for some or other valid reason. If the Employee cannot provide a valid reason for absence from the workplace or advises either verbally or otherwise that he or she has no intention of returning to the workplace, the Employer may then regard the Employee as having deserted the workplace and may then take disciplinary action, in absentia if need be, to conclude the matter and formally terminate the employment relationship
Employers should tread carefully in circumstances of desertion and not act too quickly in dismissing an Employee who has not reported for duty without notice to the Employer. The Employer must attempt to locate the Employee as stated herein-above and if the Employee returns to the workplace the Employer must allow the Employee the chance to explain the reason for the absence, and the reason for not being able to notify the Employee of the absence or when the Employee intended to return to the workplace. If those reasons are not sufficient, only then may an Employer consider disciplinary action against the Employee. In these circumstances and particularly due to the current COVID-19 pandemic, it is highly possible that an Employee could have been in hospital and been unable to contact his or her Employer and only return to work weeks later. Accordingly, it would be highly recommended to obtain professional legal advice when dealing with the aspect of desertion by Employees.