An employee deserts when he / she unilaterally refuses or fails to report for duty for an unreasonable long period of time, without good reason or notification and with the intention to permanently terminate the employment relationship with the employer.
It is an employer’s duty to investigate the circumstances when an employee has been absent from work for 5 working days without notice or reason for their absence. During this investigation the employer should i.e. contact the employee by telephone; visit his home; make enquiries with co-workers / family.
If you cannot get hold of the employee, send a notification by registered post to the employee’s last known address instructing him to immediately report for duty and to attend a hearing. The date of the hearing should be determined providing for at least 21 calendar days to collect the notification.
If the employee arrives at work before the date of the hearing, it must be determined where he was. If he has a valid reason for his absence, no hearing should be conducted. You may consider issuing a warning for failing to inform you of his absence.
If the employee has no valid reason for his absence, a hearing should be scheduled.
Employers anticipating the dismissal of employees who desert must prove the following at a disciplinary hearing where the employee is present:
(1) That the employee was absent from work for at least 5 working days, without good reason, leave, an illness or notification to the employer;
(2) That he exhausted all means to his disposal to contact the employee, and that the employee was informed in writing that he must return to work and to attend a disciplinary hearing;
(3) That the period of absence from work was unreasonably long;
(4) That the employee has no intention to return to work i.e. the employee threatened to resign, stated that he is not coming back, is looking for other work, already works at another employer, removed personal items from his office / work table / locker.
If the employee does not react to the notification handed / posted to him, you should not continue with the hearing. If the employee refers a case to the CCMA, the employee will bear the onus of proof that he was dismissed.
If the employer is not able to conduct the hearing due to the employee deserting the workplace, his services should not be terminated. The employee is listed as deserted on the employer’s books and/or “status unknown”.
Avoid making any payments to the employee or any institution i.e. Department of Labour, Provident Fund and Inform such departments of the situation in writing. Never indicate that the employee has been dismissed!
The biggest problem employers face at the CCMA is when an employee refers and unfair dismissal dispute, and no procedures were followed by the employer for desertion. It then becomes word against word which makes it difficult to prove that no dismissal took place.
It is therefore imperative that employer’s follow these steps.
Article by: Anesta Kruger
CEO Dispute Resolution Official – Durban