The word ‘deemed’ must here be taken in its general sense as meaning ‘considered’ or ‘regarded’.
We all assume that the law applies equally to both private as well as public service employees, but the moment we refer to “deemed dismissals”, we realize that there are different rules for these two types of employees.
Deemed dismissal is when a public sector (employer) regards an employee dismissed as stated in Section 17 of the Public Service act, 1994, where as in the private sector the employer has to dismiss and / or reinstate an employee on his return to work. Different rules for different employees! Deemed dismissal is not an option for the private employer, but the law created a fiction for the public employers where they can make use of the phrase deemed dismissal. This means the public sector has the right to assume that an employee is dismissed if he or she is absent from work for a certain period, usually after the period of 30 days – and unless the employee presents him or herself and shows good cause, he or she will be deemed to have been dismissed indefinitely. BUT with private employers there are certain procedures to be followed, there will have to be a disciplinary – hearing (if not finally dismissed for abscondment in absentia) when the employee later returns to work.
A good example hereof is found in the Grootboom v National Prosecuting Authority and Another case: the state employee was placed on suspension as a precautionary measure, after allegations of misconduct were leveled against him. During the period of his suspension, he left for the United Kingdom to study on a scholarship for twelve months. The Department regarded this as a deemed discharge, by mere operation of law in terms of section 17(3)(a) of the Public Service act.
In the private sector an employer will never be allowed to assume an employee is dismissed, the employer must make a decision to dismiss. The reasons for the absence – particularly because it is without the consent of the employer – cannot be known to the employer at that stage. The employer cannot then decide to condone the absence or sanction it, for to do so would finally decide upon the merits of an only apparent misconduct.
There is a significant difference between absenteeism and desertion. The latter entails an intention to no longer be employed, whereas the former does not.
The employer cannot simply abide the employee’s apparent desertion. The state employer must be able to effectively deal with the absence in the interim and until such time as the position is clear.
It is my opinion that proper procedural rights must be afforded to all employees – both in terms of section 17 and 14 of the Employment of Educators Act prior to the making of a final decision of a dismissal.
The only marked differences are that as the employee is a state servant, his employer is aided by a statutory, inferring an intention of not wanting to return to work. The statute also allows for the treating of such an employee, as he is already dismissed. Private employers must establish this through a fair process, before it can dismiss.
It is clear that there are different rules for different employees, but the question still remains that is “deemed dismissal” only a fiction created by law for the state employees.
Article by: Christelle Kemp
CEO Dispute Resolution Official – Klerksdorp