Absenteeism and the Law

Apr 17, 2019

Many employers experience problems with employees being absent from work. In fact, in many workplaces absenteeism is a major concern as it impacts negatively on the operational requirements of the employer.

Absence from work is either authorised, or unauthorised.

Authorised absence would be annual leave, sick leave, family responsibility leave and maternity leave.

Unauthorised absence would include late-coming, desertion, abscondment, etc.

Habitual absenteeism may occur for valid reasons, but employers are not required to endure an employee’s frequent absenteeism indefinitely, regardless of the validity of the medical or other reasons.

Incapacity cases are non-fault scenarios whereby the employee is not capable of rendering regular attendance. Employers are required to conduct an investigation of the reasons for the persistent absenteeism. It must be determined whether the employee is capable of performing the duties for which he or she was employed as confirmed in NUM AND OTHER v LIBANON GOLD MINING CO LTD (1994: LAC): “A fair employer will ensure that the employee concerned…will be kept informed and will be properly consulted in the course of making that assessment”. Habitually absent employees need to be cautioned that their ongoing employment is in jeopardy because of the frequent absenteeism, or as provided in AECI EXPLOSIVES LTD v MABALAU (1995: LAC).

Attendance should be monitored and irregular attendance discussed with the employee and investigated. Where there is a pattern of excessive absenteeism, the counselling of the employee should be recorded, and the employee informed of the prejudice being suffered by the employer.

If no improvement is evident, the employee should be advised that should he or she not be capable of satisfactorily addressing the prejudicial pattern of absenteeism within a specified time frame, the employer will be compelled to review their suitability for ongoing employment thereafter on grounds of incapacity. To be found guilty of an offence of absenteeism, fault must be present. Therefore, an employee charged with unauthorised absenteeism, cannot be at fault if there are valid reasons for his/her absence.

An analysis of case law in this field shows that there are numerous cases on the topics of absence without leave/desertion, but less on the topics of abscondment and late-coming. In many cases, employers fail to deal with the issue in a procedurally fair manner. When an employee has deserted his/her employment, it is a repudiation of the contract of employment. The employer has an option to accept the repudiation. In accepting the repudiation the employer is terminating the contract and it therefore follows that the employee should be given an opportunity to state a case in response. In practice, it often occurs that the employee “disappears”. In such cases, the relationship may be terminated in the absence of the employee; however the right of that employee to state his case should still remain should the employee later return.

However, it is the extent of absenteeism as a concept that often paralyses employers into inaction. The solution is to develop a policy, or policies, that cover all forms of absenteeism and to ensure that supervisors and managers are trained to utilise the policies. Only then will employers be in a position to manage absenteeism.

- Wallace Albertyn is a Senior Associate and Labour Law Practitioner at LabourMan Consultants.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@labourman.co.za or 021 556 1075 to speak to one of our consultants.


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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