Labour insight: Desertion in the face of the holidays
By Jan Truter
With the end of the year around the corner, some employers face the prospect of employees going on leave and not returning on the due date or not returning at all. What is the correct way of dealing with such a situation?
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.
* Jan Truter is a founder of Labourwise, an on-line labour relations service aimed at SMEs. Email them on email@example.com