The classic “AWOL” employee, or in labour parlance, an employee that is absent without authorisations, is quite possibly the most regular headache for any employer and HR department to deal with. In the current atmosphere of fear and uncertainty related to the COVID-19 pandemic in South Africa, employees as more likely to not report to work, and employers will be challenged to make sure they handle such absences correctly and fairly.
Before any action on unauthorised absence is taken in the months ahead, all employers are urged to take disciplinary action with compassion, to understand that there is a real and visceral threat affecting the judgement of employees on whether or not to report to work – as this will be taken into account at future CCMA challenges should an employee feel unfairly treated. However, employers must also act in the best interest of their business and the future health and well-being of the company and the other employees. This is a tough task.
In terms of the law with regards to unauthorised absences, it is best to start at the first principle, that is, due to the nature of the employment contract between the employee and the employer, an employee has a duty to enter into and remain in service when required to do so except in times that authorisation for absence has been granted.
In circumstances where an employee is unable to return to work after leave or sick leave, the employee can reasonably be required to inform the employer of this continued absence and the reason he/she will not be returning to work as agreed. It is important to note that should an employee be absent without authorisation and this requirement to inform were not met, it does not necessarily warrant a dismissal. The reason for the employee’s absence must first be established and based on that the employer can determine the appropriate disciplinary action to take.
There is a difference between absenteeism, abscondment and desertion in South African law:
- Absenteeism is a short period of unauthorised absence from work.
- Abscondment is an unauthorised absence from work for an unreasonably long period.
- Desertion is when an employee either leaves the employer’s employment or fails to return to work with a clear intention to not return to work at all. If there is an intention to return to work at some point, it is not a case of desertion but of absenteeism or abscondment depending on the length of the absence.
In cases of absenteeism and abscondment, the employer must schedule a disciplinary hearing prior to dismissing an employee by following the normal and fair disciplinary procedures.
In cases where it becomes clear through investigation of the facts that the employee has deserted employment, evidence such as if the employee relocated to a different town or province during the absence or the employee had taken up employment with another employer, it is advisable for the investigating employer to address a letter to the last known address of the employee. This letter should inform the employee that it is believed that the employee has deserted his/her employment and that his/her employment will be terminated on a certain date, should the employee not return to work or contact the employer by a given deadline. If this deadline is not met, employment will be terminated.
Contact JOBLAW for expert guidance on these and any other labour related issues.