Absconsion is defined as an instance where an employee leaves their workplace with no intention to return. Employers usually fall into the trap of assuming that if an employee has absconded, the relationship ends without any effort on their side however, there is a duty on the employer to ascertain that the employee has indeed absconded and has no intention to return to work. The employer should take reasonable steps to contact the employee and establish their whereabouts. This can be anything from calls, texts, asking family and friends, and even sending a registered mail to the employee’s last known address. Proof of all attempts to communicate with the employee has to be kept.
Should the employer find out that the employee has been arrested, they have to establish whether the employee is up for bail and if so, the employer may await the bail hearing of the employee and find out whether bail is granted. If it is granted, the employee will return to work. It must be noted that the employer may not dismiss the employee for their arrest even if they feel that the trust relationship is broken as the employee is yet to be convicted of the charge at this point. In the case of Visser vs Woolworths (2005) 11 BALR 1216, an employee was arrested on a charge of theft from a competitor of the employer. The employer dismissed her due to her arrest on the grounds that she had several subordinates who were supposed to look up to her and that she could no longer be trusted. The arbitrator was cognisant of the employer’s right to dismiss an employee if the trust relationship has been irretrievably damaged. However, in this case, the employer had failed to prove that the employee was guilty of theft and could not show that the employee could not be trusted. The dismissal was found to be unfair.
In this case, that bail is not granted. The employer has to look into initiating an incapacity process on the basis that the employee is unable to render their services due to their arrest. The court has accepted that the employer cannot be expected to keep the employee’s position open for an indefinite period of time. In Samancor Tubatse Ferrochrome vs MEIBC & Others (2010) 31 ILJ 1838 (LAC), an employee was arrested for allegedly committing armed robbery. He was absent from work for approximately 150 days. The employer decided to dismiss the employee on the grounds of incapacity, without a hearing, they delivered a letter of termination to the police station where the employee was imprisoned. The Labour Appeal Court agreed that an employer could not be expected to hold an employee’s position open indefinitely. Especially a position of importance or a key role within the employer’s business. Accordingly, incapacity would be an appropriate means of terminating the employee’s employment. The court reiterated the need for procedural fairness to be adhered to so that the employee is allowed an opportunity to state his case. The court further deemed written representations appropriate to comply with this procedural element of a fair dismissal.
In the case that the employee was arrested, and the employer never found out or acted until the employee returned, the employer still cannot just tell the employee that they are no longer needed. In Mofokeng vs KSB Pumps (2003) 12 BALR 1342, the employee was imprisoned and thereafter returned to work, but the employer did not want him back on the grounds that he had absconded. However, the arbitrator decided that abscondment occurs when the employee leaves his employ without the intention to return. As the employee had returned to work immediately on his release from prison, he had done nothing to give the impression that he did not intend to return. The arbitrator also ruled that the fact that the employer had already replaced the absent employee was of no consequence.
In conclusion, absconsion does not lead to automatic termination of the employment relationship. If an employee has absconded and their whereabouts are unknown, the company must follow an absconsion process. Should the employee be found to have been arrested, the company must follow an incapacity process. The employee may appeal against either process upon their return. If they ever return.
Article by: Buhle Masuko
Dispute Resolution Official – Durban