Introduction
Employees are sometimes absent from work for extended periods without giving notice, and employers may be unable to reach them through any channel – whether via family, friends, colleagues, or their cell phone. In such cases, the employee may simply be unreachable, fail to respond to messages, or have messages that remain undelivered or unread.
A common mistake employers make is to assume that an employee who has been absent for several days has automatically absconded. They may rely on the disciplinary code, classify the absence as desertion or abscondment, proceed with a disciplinary hearing in the employee’s absence, and ultimately dismiss them. However, under labour law, this approach is incorrect and can expose the employer to significant risk and cost
The Risk of Assuming Abscondment
One of the most common errors employers make is to immediately conclude that the employee has absconded. In simple terms, abscondment means that the employee has left their job without any intention of returning. While this may sometimes be the case, it is not always true. There could be many other reasons for the employee’s absence, such as a medical emergency, a family crisis, or lack of access to communication.
Many disciplinary codes state that absence for more than three or five days constitutes automatic abscondment. The CCMA has consistently rejected this. A clause in a policy does not override the requirement to prove intention. The 2025 case of Khomari v Tronox Mineral Sands (Pty) Ltd (2025) made this clear once again. Ms Khomari was absent due to illness. The company dismissed her under its abscondment clause without holding a proper hearing. The Commissioner found she had never intended to abandon her job, ruled the dismissal both substantively and procedurally unfair, and awarded her six months’ backpay.
Why Employers Should Avoid Quick Conclusions
Because of this uncertainty, employers should avoid jumping to conclusions too quickly. Acting too fast, especially by treating the absence as abscondment, can result in unfair dismissal. Many employers rely on their disciplinary codes and may hold hearings in the employee’s absence, but this approach can be problematic
Legal Risks and Fairness
This approach is risky and not always legally correct. Labour law generally requires employers to act fairly and to consider all possible explanations before making a final decision. Dismissing an employee without fully investigating the situation may be seen as unfair and could lead to disputes or financial consequences.
Taking a Careful and Fair Approach
A more careful approach is needed. Employers should make every reasonable effort to contact the employee using different methods and should keep records of these attempts. It is also important to allow enough time for the employee to respond and to consider that there may be valid reasons for their absence.
Giving the Employee an Opportunity to Explain
If the employee returns, they should be given a chance to explain their absence. The employer should listen to the explanation and consider all the facts before deciding on the next steps. Any disciplinary action should be fair and based on proper investigation.
Conclusion
Act thoughtfully, not hastily. Unexplained absence can be frustrating, but employers should not assume it automatically means abscondment. Acting too quickly can lead to unfair outcomes and legal risks. A patient, fair, and thorough approach will help protect both the employer and the employee.
Sources
- SABC v CCMA & Others (2001) 22 ILJ 487 (LC)
- Mtshinindo v Cashbuild, Hillfox (2009) 18 CCMA 8.17.2
- Khomari v Tronox Mineral Sands (Pty) Ltd (2025) – CCMA
- Pick ‘n Pay Retailers v SACCAWU obo Mzazi (CA 19/2015) [2016] ZALAC 56
- NUM v Rustenburg Base Metals Refiners (1993) 14 ILJ 1094 (IC)
- Code of Good Practice: Dismissal – Schedule 8, LRA 66 of 1995
