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Thread: Employee doesn't return to work - how to proceed?

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    Employee doesn't return to work - how to proceed?

    We had a girl start at the company late August. Last week Monday she asked if she could leave early, and was given permission. That was the last we saw of her.
    She apparently spoke to someone the next day, said she was sick or something, but has not contacted the company since. Company has not contacted her.
    What is the correct way forward here? Her work was shoddy at best and she was likely on course to be let go anyway - she has not signed any contract.

    I'm not sure if/how it factors in, but a few weeks in she informed us she'd just found out she was pregnant, and did take a few sick days in the following weeks.

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    If you had established performance targets for her in the beginning and you she has not met those performance targets then you can let her go without any repercussions.
    If there is not contract you can also let her go, depending on how difficult a person she is , you may have to expect some conflict with her though.
    The pregnancy would only factor in if she had signed a contract with you, but since there are no supporting documents saying that she was an employee then it does not factor much.

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    Site Caretaker Dave A's Avatar
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    It can be risky assuming desertion without contacting the employee first.

    Play safe and try to contact her before making the final call. I expect at this point she isn't costing the company money as she'd be on unpaid leave, at worst.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Dessertion or AWOL brings its own peculiar challenges.
    I have pasted below a small indication of same.
    There is divided thought on how to approach -
    one is to hold the hearing, following attempts to make contact, the second is to "suspend" the position and continue. If the employee returns then follow disciplinary process. Each has its pro's and cons. Probably the deciding factor is if you can make contact or not. If you can make contact the path is probably to do hearing, in light of the fact that the employee knows thereof, (I use sms and courier service rather than registered post)
    If I am unsure if contact can be made then I use sms and registered post for employee to report. If they do not report i "follow the sleeping dogs lie approach" and if tehy return act accordingly.
    DESERTION

    A deserter is an employee who is absent from work for more than 5 days, without notifying the employer of the reason for the absence, and has shown that he/she has no intention of returning to work. Remember that the intention
    to desert - the intention not to return to work - must be present. The employee must still be given an opportunity to explain their absence. Therefore you cannot dismiss for desertion an employee who has been off sick for 10 days without notification and who returns to work with a valid medical certificate. He had no intention to desert - he was sick.

    This is a critical area, an employee may have been dismissed for desertion and then, like the prodigal son, returns. He says he was in a coma in hospital and wants his job back. As he had not intention of not returning to work he is not a deserter, therefore you need to hold a hearing and charge him for absence of an unreasonable length; in this case his medical condition precludes him from dismissal. Had he been visiting his aunt for three weeks, he could be dismissed for unauthorised absenteeism rather than desertion.

    So an arbitrator has held that the dismissal of an employee while he was in prison was unfair because his whereabouts could have been established. This means that even deserting employees are entitled to an opportunity to persuade the employer that they were absent for good reason. So too was the dismissal of an employee when she returned to work after allegedly being abducted was ruled unfair because the employer had made no attempt to verify the reason for her absence. However, where an employee presented himself for work on being released from prison seven years after his dismissal, the CCMA held that his claim had prescribed. The court ruled that the LRA does not exclude the Prescription Act, which allows a three-year period in which to make a civil claim.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    AndyD (11-Oct-11), Dave A (11-Oct-11)

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    Thanks for the advice all.

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