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.