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Thread: Absconding Deserting Employees

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    Platinum Member Marq's Avatar
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    Absconding Deserting Employees

    Learnt a labour law lesson this week and thought I would share it with you so you do not make the same assumption.

    Occasionally we have had an employee that does not come back to work and we record desertion / absconded on the file and life goes on.

    This happened 2 months ago and a month later we received a con-arb from the ccma stating that we had unfairly dismissed this employee.

    At the hearing that I now had to attend, I was informed by the commissioner that desertion/absconding is the employers problem not the employees.

    It would seem that the following is the case:-

    There is an incorrect assumption that if an employee has been absent from work without permission and has not communicated with the employer for a certain period, that such an employee has deserted (also referred to as absconded). Employers generally view such a situation as one where the employee "dismisses him/herself".

    In reality an employee only deserts when he/she leaves the work place with the intention of not returning. The fact that the employee ceased to tender his/her services, amounts to a breach or repudiation of the contract. The employer may "accept" such repudiation. The problem is often that the employer is unable to establish whether the employee has in fact deserted. There may be several reasons for the employee's absence.

    If it is not clear whether or not the employee has deserted, the employer must make an attempt to contact the employee. If successful, the employee must be notified of a hearing to establish the reason(s) for his/her absence from work. The employee's services may for all practical purposes be terminated if all reasonable attempts to contact the employee have failed. In this regard the Labour Court found that stopping an employee's pay could amount to dismissal.

    If the employee returns to work at some future date, the employee must be afforded the opportunity to state his/her case. Notwithstanding the fact that the employee was dismissed as far as the employer is concerned, the safest approach would be for the investigation to take the form of any other investigation into misconduct. After the investigation, the employer must communicate to the employee the decision as to whether the employee is re-employed or reinstated or not, and preferably furnish the employee with written notification of that decision.
    Fortunately we had our ducks in a row and got off lightly but believe this situation can get nasty. Imagine 6 months (Considered the reasonable time test) later your wayward employee returns and gives some believable story - you are in for 6 months salary, leave pay, notice pay etc etc.

    Be careful out there.

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    just me duncan drennan's Avatar
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    The employee's services may for all practical purposes be terminated if all reasonable attempts to contact the employee have failed.
    Do you have any idea what reasonable attempts would be? What kind of documentation should be kept? Could you tell us what documentation you kept in this regard?

    You said you got off lightly...did you have to pay any fines?
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    Platinum Member Marq's Avatar
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    Reasonable attempt is a letter/s or telegram and contact with family.

    Thereafter hearing and disciplinary procedures and enquiry into why the employee did not pitch and what the problems were.

    You are supposed to process this only if employee is present? Assume back and looking for job. Apparently its common and you are supposed to continue paying salary until you dismiss through hearing. It usual that they come back when bucks run out as no salary in bank and then the fun starts.

    Key is also having the letter of appointment setting out end of contract details.

    So I had the letter of appointment and a disciplinary hearing (employee not there) and a final scenario that said emloyee assumed to not be coming back assumed resignation (this is where I was told it is not so) . This was all considered ok - We just had not tried to contact. So I got "nice try" award and some sympathy.

    You are placed in a position that asks - Will you take them back or do you want to pay them out notice pay etc. Niether puts you on a road to a full unfair dismissal scenario.

    Fortunately then, the person lied as to their reasons for not pitching back at work and blamed the ccma for giving bum advise. End result was I had to pay some notice period of a few days R200.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Marq View Post
    Key is also having the letter of appointment setting out end of contract details.
    Our employment contract is pretty clear on what constitutes desertion. It also places a duty on the employee to report the cause of their absence as soon as reasonably possible. The point is taken, however, that we should send a letter advising that employment is being terminated by reason of desertion - and perhaps giving ten days(?) to respond should they so wish.

    On being liable for months of pay:
    Surely the employee must indicate the nature of the leave being applied to their absence - and there is only so much "paid leave" options available...
    Thereafter, I would have thought it would be unpaid leave anyway.
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member Marq's Avatar
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    Ah...yes this is logical but the labour law, ccma, commissioners and the system don't work on logic.

    Examples given on a labour law web site included
    A guy who went to Kimberley on Company business and didn't come back to work for a while......His story was could not get back - got robbed, no money in bank to call or for transport - had to work down there for a while to get money to come back.
    Another guy was stuck in prison for a few months - couldn't call or contact anyone.....

    So this is a depends story.....and this is the new SA........They both could say they never intended to leave or resign and certainly did not want dismissal. Didn't understand your contract etc etc. Suddenly you are the bad guy again.

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    Do you have the prescedent details?

    Your thread a great help but can you please direct me to the actual case (all I really need is the prescedent details)?

    If I've done something wrong here please forgive. I've never posted a thread before!

  7. #7
    Platinum Member Marq's Avatar
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    I cannot remember or find where my original research led me, but here is another source sighting the need to ensure that contact is made and the full story obtained before instituting dismissal proceedings.

    SABC v CCMA & Others (2001) (22) ILJ 487 (LAC)

    From the case -
    "In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures."
    and
    "What constitutes desertion is of course a matter of fact. In some instances an unexplained absence for a reasonable period, that is to say, reasonable in relation to the employer’s operational requirements, will establish the fact of desertion. In the instance of an employee who remains away from the workplace and whose whereabouts are not known and who is out of reach of the employer, it is plainly impracticable to impose upon an employer the obligation to convene a disciplinary enquiry before reaching the conclusion that the fact of desertion has occurred and in consequence of which it is entitled in response thereto to elect to terminate the contract."

    "Whether or not an employer should convene a disciplinary enquiry before taking a decision to dismiss, is dependant on the relevant circumstances and the practicality of so doing."
    Final outcome: The Court found that there was nothing impractical about such a step and in the circumstances the employee’s dismissal was procedurally unfair. He was awarded compensation.

    On Appeal - the court agreed with the ruling made
    "Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty."
    Thus both the court a quo and the Labour Appeal Court confirmed that terminating a contract of employment due to abscondment/desertion amounts to a dismissal and accordingly, depending on the facts of each case, such dismissal ought to be preceded by an enquiry.

    Then in SACWU vs DYASI 2001 7D LLR 731 (LAC).

    If a party to a contract breaches a fundamental term thereof or repudiates it, the other party can elect to hold the party to the contract or to cancel it. [The union] could have transferred the respondent and not terminated the contract … therefore, it was the appellant who terminated the contract. It thus dismissed the respondent and it was obliged to do so both procedurally and substantively fairly."

    On procedure it found that the union could have afforded the dismissed employee an opportunity to state her case. Its failure to do so rendered the dismissal procedurally unfair.
    From www.deneysreitz.co.za
    Abscondment / desertion, as stated, is a breach of contract entitling the employer to elect either to enforce the contract or to accept the breach and to cancel the contract. If the employer does the latter, than this election amounts to a dismissal. As in all dismissals, the principle of hearing the other party’s story ought to ordinarily be adhered to. It may however in certain circumstances be impossible for a hearing to be held where the whereabouts of the employee is unknown and the employer has no way of making contact with such an employee.

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    My arbitration is HOSPERSA obo Saki vs SANParks on 08/08/08 in Uitenhage. Your input has been invaluable. I'm conviced that you have saved someone from an unfair dismissal as my argument seems pretty sound but one can never really be sure untill the day. I'll feed back the outcome. Thanks so much, and for you quick response!

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    Changes comming in the CCMA

    I would like to attach the following article as we all (in the labour industry) waiting for the new guidlines for CCMA Commisioners regarding the "Unfair Procedure" aspect.

    In short the Avril Elizabith finding in the Labour Courts placed the spot light on the CCMA in regard to their excessive use of procedure as a reason for finding for Employees as Employers are not required to run a "court case" to dismiss. This makes it easier to fight rediculous excuses and procedural reversals.

    BIT OF A READ BUT WORTH IT.

    Headline News
    Time for business owners to stand ground at CCMA
    Adapted from a recent edition of Gauteng Business
    The time is right for business owners to put up a fight at the CCMA, now that the Labour Court has come out strongly
    against the overly technical approach by the CCMA that has up till now made it very difficult for business owners to
    fire someone, says well-known labour law researcher Andrew Levy.
    "Important people" are now aware of the fact that the CCMA is being abused by many, including dismissed workers
    and "schlenter" labour law consultants, says Levy. But the tide will only turn in favour of employers if they themselves
    take a "bold and aggressive" stand and fight to change the system, he says.
    Hope for employers was fanned by the recent Avril Elizabeth Home case, which was taken on review to the Labour
    Court after the CCMA found in favour of a dismissed worker who had been captured on video ostensibly colluding in
    a theft. The Labour Court panned the CCMA commissioner for expecting the employer to conduct a hearing on the
    same standards as a criminal court case.
    Tito Mboweni, minister of labour when the CCMA was set up, and law professor Halton Cheadle are among the
    architects of the system who have also come out in criticism over how the dismissal process has been overproceduralised.
    Nerine Kahn, who was appointed last year as the head of the CCMA, says the Avril Elizabeth case "reminded
    everybody that we've got caught up in procedural issues".
    She said her organisation was "entirely redrafting (its) training" for CCMA commissioners - the more than 600 officials
    who preside over arbitration between aggrieved workers and their (usually former) bosses. Cheadle was brought in
    recently to help develop new ground rules for the organisation.
    Both Levy and Kahn warn that business owners should not expect an overnight change of approach from CCMA
    commissioners because a whole industry of technical labour law advisors has to be broken down first. Kahn is
    adamant that the situation is not only the commissioners' fault. She also blames labour consultants, in whose interest
    it is to make labour law processes as technical as possible. "I personally think that's where the biggest problem is -
    the labour consultant says no you've got to have this, you've got to have an investigation, then you've got to have a
    disciplinary enquiry, then after a disciplinary enquiry you must have an appeal hearing, and so on and so on. The law
    does not say that."
    Asked what business owners should do with the detailed disciplinary procedures that they may have got
    from a labour law consultant, Levy says: "Tear it up and throw it away and replace it with one sentence: 'we
    will manage our discipline in accordance with Schedule 8 of the Labour Relations Act.' Full stop."
    Business owners "must stop believing that they need to meet as high a standard of absolute justice in their
    (disciplinary) procedure as the High Court of South Africa. When there's a problem with discipline, you don't
    have hearings, you have a meeting. You don't read people their rights, you don't have cross-examination,
    you don't have prosecutors and defences. You have a disciplinary meeting at which you need to say to the
    guy 'this is the nature of the complaint, what have you got to say for yourself?' That's all," says Levy.
    And if a business owner gets dragged in front of a CCMA commissioner who is strong on procedure? "Go
    along to the commissioner with a copy of the Avril Elizabeth case in your hand. And in your closing
    argument you say 'commissioner, you've heard all about procedural fairness. Here is a copy of the Avril
    Elizabeth judgment which says you don't have to (be procedurally precise). You must accept this argument,
    and if you don't, I want you to deal with this in your judgment," says Levy.
    Part of the fight that some business owners will have to undertake to change the system to their advantage is to
    appeal to the Labour Court against unfair CCMA awards. The problem is that this can cost between R15 000 and
    R20 000. But Levy says part of the calculation that a business owner must make is that such an appeal can stay a
    CCMA award, meaning the worker does not have to be reinstated or compensated until the review is completed,
    which can take up to three years.
    According to the latest Tokiso review of dispute resolution in South Africa, 10% of all CCMA awards are taken to the
    Labour Court for review, mostly by employers. Two thirds of the reviews are successful. Tokiso statistics, drawn from
    a random sample of CCMA cases that do not involve domestic servants and farm workers, show that 54% of all
    CCMA cases last year found in favour of employers, down from 60% the year before. The CCMA's own statistics
    show quite the opposite: 59% of cases went to employees, down from 63% the previous year.
    The Tokiso research shows "very worrying" signs that employers may be turning their back on the system, says
    Tokiso head Tanya Venter. Default awards, where employers don't pitch for hearings, have risen from 10% to 18%,
    and an "astronomical" 27% of CCMA awards are not implemented by employers. Venter believes that part of the
    problem might be that the CCMA is not efficient in getting notices to employers, but it could also show a lack of
    credibility of the CCMA among employers.
    The CCMA in Johannesburg has starting holding hearings on Saturdays to make it easier and less costly for ownermanaged
    businesses to attend, says Kahn. Up till now, the biggest cost of a CCMA case for business owners has
    often been the hours spent out of business in the queue at the CCMA. If the Saturday hearings prove successful, it
    will be rolled out countrywide, says Kahn.

  10. Thank given for this post:

    Dave A (15-Sep-08), gac (03-Feb-12)

  11. #10
    Site Caretaker Dave A's Avatar
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    Thanks for this, Nire. As you say, well worth the read.
    Nerine Kahn, who was appointed last year as the head of the CCMA, says the Avril Elizabeth case "reminded everybody that we've got caught up in procedural issues".
    I think it's become a national disease across many sectors. We as a nation have become obsessed with procedure even if it means being totally ineffective. In fact, it might even be a deliberate cover-up for being ineffective. "I know I don't have much to show in results, but here is a list of my activities and as you can see, I've been busy."

    Busy doesn't pay the bills if all you are doing is spinning your wheels.

    The great part of being able to pick on procedure for CCMA commissioners is it's the easiest way to force a quick reconciliation or settlement award. With procedure it was either done right or done wrong. Dealing with the actual cause/s that motivated the dismissal in the first place is often less clear cut.
    Default awards, where employers don't pitch for hearings, have risen from 10% to 18%, and an "astronomical" 27% of CCMA awards are not implemented by employers. Venter believes that part of the problem might be that the CCMA is not efficient in getting notices to employers, but it could also show a lack of credibility of the CCMA among employers.

    The CCMA in Johannesburg has starting holding hearings on Saturdays to make it easier and less costly for ownermanaged businesses to attend, says Kahn. Up till now, the biggest cost of a CCMA case for business owners has
    often been the hours spent out of business in the queue at the CCMA. If the Saturday hearings prove successful, it will be rolled out countrywide, says Kahn.
    I recently had a case of an employee taking the company to CCMA for "unprocedural dismissal." The reality was the employee was a casual worker who we ceased employing at all because they had taken up employment elsewhere and was not available three times in a row when we asked that she come in. On the third occasion, we advised her over the phone that we wouldn't be calling for here services again and wished her well.

    Blow me down, we get the call-up for a ConArb at the CCMA.

    At the conciliation this "employee" wasn't looking for reinstatement - all she wanted was "something." Something turned out to be money - how much? Basically no idea - but as much as she could get would do.

    The mediator was getting quite frustrated - the employee's case was obviously groundless but she wasn't leaving without "something." When I suggested we move straight to arbitration and get the heck out of there, I was told the arbitration could only be heard in the afternoon - about 4 hours later.

    Once the mediator cottoned on that I couldn't hang around for 4 hours for an arbitration hearing, the squeeze was on. In the end I settled on R500.00 just so we could get the heck out of there. If we could have moved straight into arbitration, the thing would have been over in less time and cost me nothing.

    Doesn't say much for the "quick, convenient" ConArb process and doesn't do much for the image (credibility) of the CCMA. The employee got her free lunch (probably taken a day's sick leave from her current employer to attend) and will no doubt be encouraging all and sundry...

    "It doesn't matter if you have no case. Take it to the CCMA anyway. You'll get something."

    And so the vicious cycle continues
    The trouble with opportunity is it normally comes dressed up as work.

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