09th November 2016
LABOUR BRIEF NO. 396
This question still baffles many employers – and not only employers, but let us say it baffles many people.
The employee has “disappeared.” Up comes the question “the employee” has deserted. When am I entitled to dismiss?”
He has been absent from work for the past 5 days, 12 days, or whatever – and has not notified the employer of the reason for the absence.
The employer has tried to make contact without success – the employee no longer are resides at the address on the employer’s file.
Colleagues have been requested to try and locate the missing employee – but they either refuse, or say that they have been unsuccessful.
The employer has to make a decision. He must decide whether or not this employee has deserted, and if so, does the employer have the right to terminate the contract of employment?
It is not a decision to be made lightly – because even although the employee may appear to have deserted, thus repudiating the employment contract, or, if you like, places himself in breach of contract.
The employer terminates the contract based on the employee’s repudiation or breach.
Therefore, the employee does not “dismissed himself”, and nor is it a resignation, but in fact the employer has dismissed the employee.
As a consequence, the door to a dispute of unfair dismissal is opened.
It is this possibility – of being dragged off to the CCMA with an unfair dismissal dispute – is the reason why so many employers, under these circumstances, are simply afraid to ring that final bell.
In Seabolo v Belgravia Hotel [1997] 6 BLLR 829 (CCMA), case number GA 1288, the question of what constitutes desertion was addressed.
Briefly the applicant worked as a barman for the respondent. One evening, the applicant was informed that his mother was ill in Rustenburg, and that he should visit his mother. The employer agreed to give him one day leave.
Upon arrival in Rustenburg the employee found his mother in hospital and decided to take her to a traditional healer. He returned to work some 6 days later (without, in the interim, having contacted the employer), only to be informed that he had been dismissed and another person employed in his job.
The question arose – under the circumstances of the matter, did this employee desert and abandon his employment?
The employer knew the circumstances (the sick mother), and the employee had permission to go off – albeit even only for one day.
When the employee did not return to work after 1 day, should the employer not have considered the fact of the sick mother, and should she not have considered the possibility that the illness was serious, and thus his employee had been delayed?
The issue that the applicant required the CCMA to consider was whether he had been unfairly dismissed, taking into account that there was no disciplinary enquiry, and that the reason for the dismissal was not a fair reason.
Thus the question arose – did the applicant and desert, resulting in his dismissal?
As is usual, there are always conflicting versions. The owner of the hotel did not have a relief barman to stand in for the employee when he went off to visit the sick mother. The employer’s version was that she informed the employee that she had several other duties to attend to, but as soon as she had finished these tasks she would relieve him.
At about 4 pm, said the applicant, he packed away his liquor stock in his cupboard, cashed up, requested his customers to move to another bar, closed his bar, went to the employer’s office and handed in his keys.
According to the employer, the employee came to the office, threw his keys on the table, and said he wanted his money as he was leaving. The employer paid him and he left the office.
While in Rustenburg attending his sick mother, and taking her to the traditional healer etc, the employee did not telephone his employer from the hospital, and nor did he send any messages. His only explanation for not telephoning from the hospital was that he was “confused”.
It was found that no evidence emerged at the arbitration to indicate that the employee and had no intention of returning to his shift the following day, as arranged with the employer.
As we all know, normally “the intention not to return to work” is one of the essential elements in concluding that a desertion has taken place.
The following is quoted in the arbitration award: “desertion is distinguishable from absence without leave, in that the employee who deserts his or her post does so with the intention of not returning, or, having left his or her post, subsequently formulates the intention not to return. On the other hand, the AWOL employee is absent with the intention of resuming his or her employment.”
The arbitrator observed further that “most deserters do not inform their employer that they are abandoning their job – they simply do not turn up for work.”
How then, does the employer establish whether or not the employee has the intention of returning to work?
It was further observed that “there are those instances where the employee does inform the employer that he has no intention of returning to work.”
In our experience, this practice is becoming increasingly frequent, and is done under the “disguise” of the employee giving 24 hours’ notice to an employer, or giving what is now commonly known as “resignation with immediate effect.”
Secondly,” the employer can make this deduction (the intention of not returning to work) from the facts of the matter. Some of those facts might be a total lack of communication from the employee, and the duration of the period of absence.
The arbitrator observed that in this particular instance, it seemed obvious that the employer did not inquire into the reasons for the prolonged absence of the employee, combined with what appeared to be her unwillingness to discuss the matter with him when he returned, reflects that she did not have any facts on which to base the conclusion that the employee had deserted.
Whilst appreciating the situation in which the employer found herself, and especially since she had not heard from the employee and did not know where to contact him, the arbitrator still felt that the employer or acted prematurely in assuming a desertion, and in employing another person.
