Most employers find themselves in a situation where their employees prematurely refer dismissal disputes to the CCMA, whilst the employer was in the process of instituting disciplinary action against the employee. Thereafter, the employee deserts when he/she unilaterally refuses/fails to report for duty for an unreasonable long period without good reason/notification, and with the intention to permanently terminate the employment relationship with the employer. Upon investigation, one might find that there has been a misunderstanding between the employer and the employee.

Subsequently, the employer would then receive a 7.11 CCMA referral form, which indicates that the employer had dismissed the employee. Whilst some employers do not contact the employee to inquire about his/her whereabouts – pending the CCMA matter – It is of great importance to remember that it is the responsibility of the employee to inform the employer about his/her absence.

However, the employer should note that since the employee had prematurely referred a dismissal dispute to the CCMA, the onus would lie on the employer to prove that there is a pending disciplinary hearing against the employee.

Most Commissioners indicate during objected con/arb or conciliation proceedings that there is nothing that prevents the employer from following the desertion procedure or sending any form of communication to enquire about the whereabouts of the employee -especially upon receipt of documentation from the CCMA – pending the matter.

It is possible for this prematurely referred CCMA dispute to be resolved during the con/arb or conciliation proceedings, providing that the employer is able to furnish enough proof/evidence that the employee had not been dismissed and that there is a pending disciplinary hearing against him/her.

Furthermore, the employer should also indicate to the Commissioner that they reserve the right to institute further disciplinary action against the employee upon his/her return, as he/she has been absconding his/her workplace.

It is therefore imperative, in disputes related to the above, that an employer send some form of communication to the employee upon receipt of any CCMA documentation, indicating that the employee has not been dismissed and that he/she is subjected to a disciplinary hearing.


Article by: Ernest Masupye

CEO Dispute Resolution Official – Pretoria