There is a fine line between extended absenteeism and desertion in the workplace. Desertion is often difficult for employers to prove, but they can still terminate a contract of employment by way of repudiation if the correct process is followed.
In many recent cases brought forward, companies are experiencing excessive employee absenteeism in the workplace. There is, however, a fine line between extended absenteeism and desertion in the workplace.
Desertion is when an employee is absent from the workplace without the intention to return back to work, whereas extended absenteeism is when an employee is absent from the workplace for an extended period of time but still has the intention to return to the workplace.
South African Labour Law does not necessarily place a time period on how long an employee must be absent for in order for such absenteeism to be labelled “desertion”. The CCMA, however, recommends that it may not be less than 5 (five) working days.
Desertion can be a difficult charge to prove as it requires the employer to prove that the employee does not have the intention to return back to work. Thus, it may be especially difficult to prove in a disciplinary hearing.
In SA Broadcasting Corporation V Commission for Conciliation, Mediation & Arbitration & Others (2001) 22 ILJ 487 (LC), the respondent employee who had been employed by the SABC was dismissed but subsequently the dismissal was withdrawn. A meeting took place between the employee and management on 26 November 1997. The employee was orally instructed to resume work. The employee was of the view that in terms of his reinstatement he was entitled to wait for a written instruction to resume work before doing so. And therefore he did not return to work. The SABC addressed several letters to him warning him that he was obliged to report for duty. He was finally given an ultimatum that he would be regarded as having absconded if he did not return to work on 5 December. Subsequently, on 12 January 1998 the SABC terminated his services without holding an enquiry into his desertion. The employee referred a dispute to the CCMA concerning his alleged unfair dismissal. The Commissioner found that the employee had been unfairly dismissed and rendered an award in his favour. The SABC sought to set it aside the award on review.
The court considered the SABC’s contention that it had not dismissed the employee and held that the act of desertion does not terminate the contract but the acceptance thereof does. In other words the termination occurs once the repudiation is accepted by the employer. The same approach was adopted in SACWU v Dyasi  7 BLLR 731 (LAC), where the Court held that desertion amounts to repudiation of the contract of employment which the employer is entitled to accept or reject. The acceptance of repudiation amounts to dismissal if employee once again tenders service and therefore no disciplinary enquiry was necessary.
In light of the above case, and in recent cases, it can be said that if an employee deserts the workplace an employer can terminate the contract of employment by way of repudiation. In doing this, the process would be to:
- Issue a first letter of desertion and place the employee on terms to return to the workplace. Deliver this letter via telephone, WhatsApp, email and by hand.
- Should the employee still not return to work, issue a final letter of desertion notifying the employee that the repudiation of his/her contract of employment is accepted, and that his/her employment is hereby terminated.
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Source: LexisNexis | Written by Kayla Pashiou, Managing Director at Pashiou Incorporated, for LexisNexis South Africa