Many employers get confused between absenteeism, abscondment and desertion in the workplace, which causes them to deal with it incorrectly. All of them has to do with some form of “absenteeism”, but when it comes to modern labour law there is a clear difference between each one of them. The information below will give you a better understanding of each concept and the difference between them.
This occurs when an employee is off work for a short period of time, without permission, and there are clear indications that he would return to work. It can take the form of late-coming, absences from the workstation and absences from the workplace itself for short periods.
This is deemed to have occurred when the 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. The employer still has to follow a specific process before the employee can be dismissed, but in such circumstances it would be reasonable to infer that the employee does not intend to return to work.
This is deemed to have taken place when the employee has actually intimated expressly or by implication that he or she does not intend to return to work. For example, the employee is absent from work or fails to return to work after an authorised period, such as annual leave or sick leave and evidence suggests he would not return. For example:
- His locker or desk is empty;
- He has received his normal wages and annual bonus;
- His co-workers do not know where he is. Or he has told them he is not coming back to work;
- You try contact him but he does no trespond; and
- He is not living at the address you have for him anymore, etc.
How to Deal with Desertion
In terms of labour law, desertion amounts to a breach of contract.
An employee has a duty to provide his services to the employer in terms of his contract. If he breaches his duty, he rejects his contract. But this does not mean you can dismiss him right away. Previous court rulings make it clear that desertion does not terminate an employment contract. It only terminates when the employer accepts the employee’s rejection of the employment contract.
What this means is, the employer first have to confirm that the employee’s absence really is desertion. To do this, the employer needs to look for proof that the employee does not intend to return to work.
The following three elements must be present before an employer can consider an employee’s absence as desertion:
- He is absent without the employer’s authority;
- He has not been in contact with the employer to tell why he is absent; and
- His intention is never to return to work.
While it may be difficult to assess if an employee has no intention to come back, employers have to take reasonable steps to find him and his reasons for not coming to work. If, after such an investigation into the employee’s whereabouts and reasons for absence, the employer finds he definitely does not intend to return, hold a disciplinary hearing. The employer can then dismiss the employee if he cannot give an acceptable reason for his absence.
Employers need to remember that following the wrong procedure when dealing with an employee’s absence could land the employer at the CCMA for claims of unfair dismissal.