Abscondment is not desertion, neither is it absence without leave (AWOL). Many people use the three terms interchangeably because they do not know that they are actually different forms of misconduct that need to be managed differently. In January 2015 we posted an article on the differences between the three concepts. This article is about how the CCMA deals with abscondment.
Abscondment occurs when an employee is absent from work for a time that warrants the inference that the employee does not intend to return to work. For example, the employee is absent form work without permission for a number of days without informing the employer of his absence and/or the employer is unable to make contact with the employee.
Abscondment is all too common in the workplace. For instance, an employee goes on leave or even lunch and does not come back to work. The impression is left that he does not intend to return. Do not be fooled. It is not that easy to deal with abscondment and it can land an employer at the CCMA.
Employers are frequently under the false impression that they have a solid case against an absconding employee who referred the case to the CCMA. To most employers’ surprise, the CCMA require proof from the employer that the employee did indeed abscond and of the efforts by the employer to trace the employee. In order to proof this, the employer needs to do the following:
#1: Establish the employee’s whereabouts: To prove that the employee has absconded from work, first establish a clear and unequivocal intention to abandon work.
In the case of Mofokeng v KSB Pumps (2003) 12 BALR 1342 (MEIBC (Metal Engineering Industries Bargaining Council)) the Arbitrator held in Mofokeng’s favour after it deemed his dismissal, while he was in prison, as unfair. The reason? The employer should have established his whereabouts before dismissing him.
#2: Employees have the right to be heard: The absconding employee must be given an opportunity to convince the employer that he had a good reason for being absent.
In Moganedi v Sonpark Kwikspar (2003) 9 BALR 104 (CCMA) the CCMA held that the dismissal of an employee when she returned to work after allegedly being abducted was unfair because the employer had made no attempt to verify the reason for her absence.
#3: Do not simply demote an employee and then dismiss if she refuses to report for the new position
In Mhlambi v CCMA & Others (2006) 27 ILJ 814 (LC) the employee had been unilaterally demoted from the position of surgical buyer to hospital porter. This resulted in a significant decrease in the employee’s salary and status. When the employee refused to report to the position of hospital porter, the hospital alleged that she absconded and dismissed her. However, the Labour Court did not agree. It held that the decision to dismiss the employee was unfair and could be construed as a constructive dismissal.
Ignorance by employers about the correct legal process of dealing with abscondment in the workplace imposes great risks for the employer.