Absconding Deserting Employees

[Dave A]

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.

[Marq]

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.

[mchlsteyn]

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!

[Marq]

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.