7 January 2022
For many employers, the December to January period entails a higher than usual rate of staff absenteeism/turnover. This very same December to January period is usually also the busiest and it goes without saying that having a staff member that is absent or that absconds can be detrimental to the smooth running of the employer’s business.
The main difference between employee absenteeism and abscondment is that with abscondment, the employee has indicated an intention of not returning to work and they have therefore, through their actions, effectively abandoned their employment. It is left to the employer to establish whether the employee will return to work or not before termination of employment may be considered. It is common practice that un-communicated absence for a period of more than 3 days will be dealt with as absconding in most disciplinary codes.
In most cases, communicated absence from work cannot be dealt with as abscondment since the employee indicated their intention to return to work by informing their employer of their whereabouts.
In Mtshinindo / Cashbuild, Hillfox (2009) 18 CCMA 8.17.2 the employee was dismissed for absconding. In this particular case, the employee was absent for 6 days from work. What helped the employee’s case is that communication did take place as the employee’s wife informed the employer that the employee was ill and visited a traditional healer. The employer argued that the contract of employment automatically terminated in terms of its disciplinary code. The arbitrator rejected this argument and stated that in order to show that the employee’s absence from work amounted to the employee terminating his employment contract; the employer will be required to show that the employee abandoned his job and had no intention of returning to work.
The employer failed to show this. The employer was unable to oppose the employee’s evidence that his wife phoned the employer to inform about the employee’s illness. The said phone call to the employer, together with the fact that the employee reported for duty again, is inconsistent with an intention by the employee to abandon their job. The employer never charged the employee with absenteeism and instead, incorrectly adopted the approach that the employee had absconded and abandoned his job. The employee’s dismissal was ruled unfair.
It is clear from this case that it is crucial that the employer establishes whether an employee intends to return to work. In this regard, employers are advised to send at least one formal return to work letter to the employee and keep a proof of service. Within this letter, the employer should clearly set out that the employee is required to return to work by a certain date, and that failure to do so will result in their dismissal as it will be deemed that the employee has abandoned their employment.
Should it happen that the employee does not adhere to this first return to work letter, the employer will have to follow up the first letter with a notice to attend a disciplinary inquiry. The employee should be charged with abscondment and should be issued with a notice to attend to their last known address or contact details. A reasonable time frame between the first letter and the notice to attend should be granted. Generally 48-hours would be considered sufficient. It is further advised that employers allow another 48-hours from the time that the notice to attend is served on the employee and the time and date that the disciplinary inquiry takes place.
Employers should once again stress the consequences of the employee’s non-attendance, in that the disciplinary inquiry will continue in absentia and may result in the employee’s dismissal regardless of their attendance.
Should the employee be dismissed in absentia, a third letter will have to be served on the employee confirming their dismissal and reminding them of their right to refer the matter to the CCMA within 30 days of their dismissal.
When diligently complied with, the above process demonstrates that the employer followed reasonable steps in determining whether their employee has the intention of returning to work and that the employer was left with only one conclusion, that the employee, through their continued absence and unresponsiveness, indicated their intention of abandoning their employment. Dismissal would be warranted in these circumstances.
What happens in practice is that employees make contact at a later stage or return to work after they have been dismissed. Should this happen, it is advised that the employer grants the employee the opportunity to be heard and establish if there are any valid or reasonable justifications for the employee’s extended period of absence.
With the employee’s reasoning in mind, the employer will have to carefully evaluate the dismissal of the employee and must be able to prove that attempts were made to get the employee back to work, that the employer waited a reasonable period of time before dismissing the employee, and the period of absence from work was unreasonable when weighed up against the operational requirements of the company, the importance of the position and the impact on other employees.
Employers should not tolerate the uncommunicated absence of their employees and it would be in the employer’s best interest to act upon such absence sooner rather than later. Employers are however urged not to rush through the abscondment process as detailed above, as the onus rests on them to prove that the employee showed that they had the intention of abandoning employment, and that dismissal would be warranted and fair in the circumstances.
Contact Invictus on 086 173 7263 for assistance with absconsion procedures, thus ensuring that you are properly equipped in dealing with the situation in a risk-free and compliant manner.
