Absconding Deserting Employees

[Dave A]

Was the employee employed (and subsequently abscond) after 31st July 2011?

[Peter777]

Yes, the employee continued working for the company until Nov'12 at which point she went on unpaid leave to have an operation performed. Her medical practitioner advised that she was fit for duty on the 26th Dec'12, and in a subsequent agreement between the employer and employee it was agreed upon that she would return for duty on the 1st Jan'13.
Despite the fact that she was on a "term" contract the employer retained the employee's services on a "contact" employee basis as the employer was aware of her failing health, and hence the reason of never issuing an "permanent" employee contract.
No notice has been given to management, but the employee has indicated to other employee's that she doesn't intend returning to work.
Our concern as an employer is the same as other cases, if we deem her to have absconded after the 14th Jan will we be liable for compensation should the employee approach CCMA considering that no formal notification has been given to the employer of termination by the employee.
Please take into consideration the fact of her contract having "expired".

[Dave A]

Please take into consideration the fact of her contract having "expired".

That's exactly what I am taking into consideration. The continued employment up until November 2012 in the absence of a valid fixed term employment contract would mean the employee has a strong case to argue for permanent employment status by now. The expired contract will have no bearing on the current conditions of employment unless there are clauses providing for its extension in whole or in part.

I recommend you proceed as if dealing with a permanent employee situation and this is too early to presume the employee has absconded. The first step now would be to make every effort to make contact to clarify why the employee has not returned to work.

[Peter777]

Thank you Dave,

Much appreciated for your input on this situation.
Its as I suspected, that by terms of the labour law and subsequently the stance CCMA would take that the employee is deemed to be an permanent employee, unlike the stance that the banks would take and deem the employee to be a "contract" worker according to only having an "term" contract and would therefore by banking law not qualify for a HP loan.

Why would two different laws be created governing one situation??
i.e the status of an employee {are they contract employees or permanent employees} :-)
No need to answer that one.

[Dave A]

When it comes to categorising their clients, banks are a law unto themselves