Article written by Carla Meiring (Legal Advisor at SEESA – Durban)
Employers are often faced with situations where employees are absent from the workplace for long periods. It is important to follow a proper procedure to deal with these situations.
Here are some tips on what you need to know when dealing with the desertion of employees:
There is a duty on an employer to contact an employee who does not report for duty to establish his/her whereabouts. This should be done from the first day of absence. Employers should keep a record of all the attempts made (call logs, messages notes of co-employee interviews etc.) This is done to show you did everything you could to ascertain the employee’s whereabouts.
Should you have no contact with the employee for a consecutive period of five days, you can proceed to send the Notice to attend a Desertion Enquiry through a registered e-mail or personal service (with a witness). This document can be obtained by contacting SEESA.
It is important to note that if you are able to make contact with the employee, you need to instruct him/her to report back to work immediately. Should they have no proof or a valid reason to substantiate their absence, you can proceed to take disciplinary action. You will only send out desertion documentation if you have no contact with the employee.
In the matter of SABC v CCMA and Others (2002) 8 BLLR 693 (LAC), it was held that: “It is not desertion when an employee who is absent from work intends returning to work. Desertion necessarily entails the employee’s intention to no longer return to work. The employer would have to establish this intention in a fair process”. If you are unable to contact an employee, you are unable to establish their intention. If an employee no longer wants to work, request them to resign.
At no stage during this process, should an employer inform the employee that he/she has been terminated without first having a proper hearing. This is to ensure procedural fairness. If you are not able to reach the employee during the desertion process or should the employee not arrive to attend the Desertion enquiry, you can proceed to mark them as inactive on your books. At this stage, you can also inform any parties whom you are paying on the employee’s behalf (Provident Fund, UIF or Bargaining Council), that you will no longer make payments as the employee has absconded. Seeing that there was no hearing and no termination, it will be difficult for the employee to be successful in a claim for unfair dismissal.
If the employee returns to the workplace at any stage during this process or even on the day of the “Desertion Enquiry”. You should contact your nearest SEESA office to arrange a Formal Disciplinary Hearing which one of our Legal Advisors will chair. All your documented attempts to contact the employee will serve as part of your evidence.
There is no set procedure in the law to deal with deserting employees. SEESA has developed reasonable guidelines to assist employers. It is advisable to stay in contact with your nearest SEESA office to ensure you follow a fair and reasonable process in each specific situation.
About the Author:
Carla Meiring is a Legal Advisor at SEESA’s Durban office. She obtained her BCom Law and LLB degrees from the University of Free State.
Case Law: SABC v CCMA and Others (2002) 8 BLLR 693 (LAC)
Legislation: Basic Conditions of Employment Act 75 of 1997 (as amended)
Websites: M Phala, Dealing With Absconding / Deserting Employees in Public and Private Sectors. https://www.labourguide.co.za/desertion (Last Visited 19 February 2021)
SEESA’s Standard BCEA Contract of Employment
SEESA’s Guidelines to the employer in dealing with desertion