Desertion from the workplace by an employee
18 Mar 2021
The definition of desertion is that an employee has left his or her place of work and does not appear to have any intention of returning to the workplace. Whilst South African labour law legislation does not state a specific period after which an employer can assume that the employee does not intend returning to work, in practice and according to the Commission for Conciliation, Mediation and Arbitration (the CCMA), it is generally accepted that the period should not be less than five days.
The employee’s obligation to the employer in respect of desertion
The employee has an obligation to inform the employer of any reason why he or she is unable to be at work (for example being sick or having to attend to a family responsibility) and when he or she intends returning to work. However, where the employee does not contact the employer in the aforementioned period, the employer has an obligation to try to contact the employee before taking any disciplinary action.
The employer’s obligation to the employee in respect of desertion
The employer must attempt to contact the employee to explain to him or her the possible consequences of staying away from work without permission and to determine whether there is a valid reason for the absence and why the employee could not contact the employer (for example hospitalisation).
The appropriate and reasonable way to deal with desertion would be for the employer to make contact with the employee using the employee’s last known contact details to inform him or her that he or she needs to explain his or her absence from work and, in the absence of an acceptable reason, that unless he or she returns to work within a reasonable period (which must be specified), he or she will be regarded as having deserted employment and his or her services may be terminated.
Ways in which the employer could attempt and should attempt to contact the employee
Forms of contact could include the following examples or a combination of the following (inclusive but not limited to):
a) sending someone to the employee’s place of residence;
b) sending the employee a registered letter;
c) sending the employee a text message or email or whichever form of contact is usually used to communicate between the employee and the employer and the employer should keep written proof that such communication has been delivered; and
e) if the employer does not have an address for the employee, the employer should make a reasonable effort to get a message to the employee (via family, next of kin, colleagues who are friends, etc.) and keep a record of such attempts.
What to do if the employee returns to work?
If the employee returns to work by a reasonable date, the employer is entitled to inquire as to the reasons why the employee was absent from work and why he or she did not notify the employer earlier about the reasons and circumstances causing the absence. The employer can then, based on the explanation given, decide on whether or not to take further action against the employee, for example disciplinary steps.
What to do if the employee contacts the employer within a reasonable period?
If the employee makes contact with the employer within a reasonable period and specifies a date of return, the employer can inquire as to the reasons why the employee was absent from work and why he or she did not notify the employer earlier about the reasons and circumstances causing the absence. The employer can also agree with the employee when he or she will return to work. If the employee returns to work after the date given, the employer would be obliged to give the employee an opportunity to explain him or herself. This would include giving reasons why he or she was absent from work, why he or she did not contact the employer and why he or she did not return to work within the period specified. Where the reason is such that it was clearly not possible for the employee to make contact with the employer or to return earlier (for example having been hospitalised) and particularly where there is some proof to support the employee’s claim, or if this claim can be verified in some way, the employer should not resort to dismissal as there would be risk of an unfair dismissal dispute.
Desertion has always been a tricky circumstance to navigate because the employee may have a genuine reason why he or she made no communication. Employers are advised to seek out expert specialised labour law advice as each desertion circumstance is different and the employer would be at great risk for an unfair dismissal if the proper steps in respect of desertion were not taken.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)