Few workplace disruptions frustrate employers more than an employee who simply does not show up for duty, particularly when the absence is uncommunicated and unauthorised. These situations are not only inconvenient but also raise important questions about the rights and responsibilities of both parties. It becomes essential for employers to understand the legal framework governing leave entitlements, the correct processes employees are expected to follow, and what action employers may reasonably take in response to non-compliance.
Understanding Leave Rights and Obligations
South African labour law, through the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA), provides employees with the right to request various forms of leave. These include annual leave, sick leave, maternity leave, family responsibility leave, and, in certain circumstances, unpaid leave. However, employees must understand that these rights are not absolute entitlements that allow them to take leave at will. There are procedures to follow and conditions that must be met.
Firstly, employees must request leave in a timely manner and in writing, following the employer’s internal policies. Depending on the type of leave, supporting documentation may be required, such as a medical certificate or evidence of a family emergency. Employees are responsible for familiarising themselves with and adhering to these policies.
To illustrate, annual leave entitlement typically amounts to 15 working days per 12-month cycle for employees who work a five-day week. In contrast, sick leave generally amounts to 30 working days over a three-year cycle. Importantly, there is no automatic entitlement to unpaid leave under the BCEA, nor can an employee insist on being granted unpaid leave. Such leave is granted at the employer’s discretion.
The law also does not specify how long an employer may take to approve or deny leave requests. However, it is generally accepted that decisions should be made within a reasonable timeframe, commonly considered to be around two weeks. This promotes certainty and fairness for both parties.
When Leave Is Denied but the Employee Stays Away
What should an employer do when leave is denied, yet the employee fails to report for duty anyway?
This scenario is, unfortunately, not uncommon. It is not only a breach of internal policy but also a wilful disregard for the employer’s authority and operational needs. As clarified in the Labour Appeal Court case of Pick ‘n Pay Retailers (Pty) Ltd v SACCAWU obo Mzazi and Others [2016], unauthorised absence from work constitutes misconduct, and where such absence results in operational disruption, financial loss, or damage, it may justify dismissal. However, the Court also noted that dismissal may be deemed unfair if the absence does not result in harm or loss, underscoring the importance of considering the impact of the misconduct.
The issue of repeated misconduct also becomes relevant. In National Nuclear Regulator v CCMA and Others [2016], the Labour Court upheld the dismissal of an employee who had been charged with unauthorised absence from work, amongst other charges. Even though the employee’s prior warning had expired, the Court took the previous disciplinary action into account when assessing the appropriateness of dismissal. This confirmed that repeated or persistent misconduct, even if previously addressed, can weigh against the employee in future disciplinary action.
Considering the Impact and Applying Progressive Discipline
Before proceeding directly to dismissal, employers must weigh two key considerations:
- What was the actual impact of the employee’s absence?
Was there a measurable loss, financial or otherwise? Did it disrupt operations, affect service delivery, or place undue pressure on remaining staff?
- Was progressive discipline followed?
If the employee has not previously been counselled, warned, or disciplined for similar misconduct, an immediate dismissal may be seen as excessive. In such cases, lesser sanctions, such as a verbal or written warning, may be more appropriate. Employers should document these steps carefully as part of a fair and procedurally correct disciplinary process.
Misconduct, Absconding, or Desertion?
It’s also critical to distinguish between different forms of unauthorised absence:
- Absence Without Leave (AWOL) refers to a short-term failure to report for duty without authorisation. The employee typically intends to return.
- Abscondment implies a longer, unexplained absence that raises uncertainty about the employee’s intention to return.
- Desertion occurs when the employer can reasonably conclude that the employee has no intention of returning to work, where one can argue that they have effectively terminated the employment relationship by their own conduct.
Each of these forms of misconduct requires a tailored approach. The nature and duration of the absence, the employee’s history, and their conduct during and after the absence should all be taken into account before any disciplinary or termination decision is made.
A Balanced and Legally Sound Approach
Unauthorised absence is a serious issue that can affect business continuity and workplace discipline. However, before resorting to dismissal, employers should take a measured, legally compliant approach. This includes ensuring:
- Clear internal leave and absence policies are in place and communicated to all staff.
- Leave applications and approvals are processed efficiently and consistently.
- Unauthorised absences are investigated and addressed through fair disciplinary processes.
- The distinction between AWOL, abscondment, and desertion is properly understood and applied.
In every case, the key is to balance discipline with fairness and apply sanctions that are proportionate to the offence and its impact on the organisation.
For best results, employers are strongly encouraged to consult with their internal labour consultants or their nearest CEO office when dealing with disciplinary action or termination for unauthorised absence. This ensures compliance with legal requirements and helps mitigate the risk of future disputes.
Article by Tamley Burds
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)