After the festive season many employers will be left in the dark regarding the whereabouts of some of their employees that have failed to return to work. Did the employee find another job, perhaps fell ill, won the lotto, found new love, and cannot or will not return to work?

The reality is that the employer will not know and can therefore not assume that the employee has no intention to return to work. In such circumstances the onus rests on the employer to establish whether the employee will return to work or not before termination of employment may be considered.

The Oxford dictionary defines the word ‘abscond’ as leaving hurriedly and secretly. It can therefore be said that the act of absconding means that one does not have the intention to return to work. In circumstances where the employer does not know whether the employee will return to work or not, the employer will have to establish this before the employee can be dismissed. It is therefore common practice that un-communicated and unauthorised absence for a period of more than three or five days, depending on the employer’s disciplinary code, will be dealt with as abscondment.

1. Communicated absence from work cannot be dealt with as abscondment because the employee indicated intent to return to work by informing the employer of his / her whereabouts.
2. Employers must refrain from acting hastily by terminating the employment of employees prematurely, even for extended periods of absence from work.
3. Should the now ex-employee return to work after termination of employment based on abscondment, he / she must be given the opportunity to appeal against such decision. The ex-employee will therefore be required to explain why he / she failed to report for duty, why he / she failed to communicate such absence to the employer and lastly, why he / she failed to respond to attempts made by the employer to establish contact.

So how does one establish whether the employee intends to return to work?

Step 1

The onus will be on the employer to enquire about the whereabouts of the employee and to instruct the employee to return to work. This is normally done as follows.

Stop paying the employee. The employer does not have to pay the employee if the employee failed to report for duty without permission or justification. Employees are quick to make contact with the payroll office when they are not paid.

Call the employee on his / her cell phone. It is surprising that many employers fail to do this and skip straight to sending a letter by registered mail. Note the date and time of the call and when messages were left. This will form part of your evidence at the CCMA to prove that you have attempted to contact the employee to establish his / her whereabouts.

Enquire with friends at work and family members. Note their comments.

Ensure that an obligation is placed on employees to inform the company of any changes to their residential and/or postal addresses. Employees must understand the consequences of not updating such information.

Send a letter to the employee (see example below) by registered mail / courier or deliver it personally to the last known address of the employee. An alternative if the aforementioned is not possible, is to take a photograph of the letter and to send it to the employee per WhatsApp. The employer will be required to retain screenshots of such communication as evidence, indicating at least two grey ticks, thereby confirming that the message was delivered.

Dear Employee

You have been absent from work without permission since 5 January 2023 and failed to communicate your absence to the company. You are instructed to return to work immediately. Failure to do so will lead us to believe that you have no intention to return to work and may lead to your dismissal.

If you do not return to work on the xxx of January 2023 a disciplinary hearing will be held which may lead to your dismissal.

Signed

The Employer

What to do if the employee fails to report for duty on the stipulated dated?

Step 2

The employer will have to follow-up the first letter with a notification to attend a disciplinary enquiry. The employee will be charged with abscondment with an alternative charge of unauthorised absence from work for an extended period. A second charge may be added to the charge sheet if the employee was in terms of policy or contract required to communicate such absence with the employer.

An important point to remember is to remind the employee of the consequences of non-attendance. If the employee does not attend the hearing, it will commence in absentia. If the employee appears at the enquiry, he / she will have to justify his / her absence from work.

Step 3

If the employee is dismissed in absentia, a third letter will have to be served on the employee confirming the dismissal and reminding the employee of the right to refer the matter to the CCMA within 30 days from the date of dismissal.

Justifying the dismissal

But what does one do if the employee decides to return to work after the dismissal? Can one simply indicate to the employee that he / she was dismissed and wish him / her a bright future? The answer is no. The employer must first give the employee the opportunity to be heard. It is not necessary to convene a fresh disciplinary hearing, the employee can just be given the opportunity to appeal against his or her dismissal, citing reasons for the extended period of absence.

This may pose a new problem for the employer since the employee may have valid and reasonable justification for staying away from work and not responding to the requests of the employer to return to work. The employer will be required 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.
• The employer allowed a reasonable period before dismissing the employee.
• 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.
• Length of service, remorse, necessity, and other mitigating factors must be considered against the seriousness and consequences of the actions of the employee.

Recently the Labour Court was required to deal with a review application lodged by a dissatisfied employer that dismally failed at the CCMA. In Country Wide Truck Sales (Pty) Ltd v. Sibuyi NO and Others (JR 281 / 21) [2022] ZALCJHB 342 (29 November 2022), the employer instructed an employee with 20 years of service, to report to another company and to resume duty there. This was because of alleged poor work performance. The employee refused and was subsequently dismissed for absconding from the employ of the other company where he was instructed to report to for duty. The employer could not prove that the employee was a poor performer, that proper procedure was followed or that the employee agreed to work for the other company. The employee could not have absconded because he was at all times available to work and had no intent to not continue with the employment relationship with Country Wide Truck Sales.

On review, the employer contended that the CCMA lacked jurisdiction to entertain the unfair dismissal dispute referred to it. The employer now argued that the employee was a subcontractor, this despite not pursuing the aforementioned during arbitration. The Labour Court held that the employee was indeed an employee, a long serving one for that matter, and was unfairly dismissed based on alleged abscondment. The arbitration award stood, ordering the employer to pay the employee 12 months’ remuneration.

Written by Jan du Toit, Labour Guide