Readers who frequent the Consolidated Employers’ Organisation (CEO) blog space will know by now that an employer must follow the necessary desertion procedures in cases where an employee does not report for duty. In Machaya v Bader SA (Pty) Ltd, a recent Commission for Conciliation, Mediation and Arbitration (CCMA) matter, the Applicant referred an unfair dismissal case against the Respondent, claiming they had been dismissed without a disciplinary hearing and had not deserted.
The Applicant in the above case stated that they had experienced a “spiritual calling” and would need to change their working hours to attend classes for six months. This was not possible, but as an alternative, the Respondent stated that they could take unpaid leave for the period, provided that specific work was completed before taking leave to accommodate the Applicant. A proper hand-over was not done, and the Respondent was left to send numerous emails requesting that the Applicant report for duty to carry out the emergency work. The Applicant did not report for duty as requested and even went as far as sending email correspondence that could only be construed as insolent. The Respondent further communicated to the Applicant that the most plausible construction of their current actions was that they had the intention of deserting their post, which resulted in them being unable to tender services in terms of their contract of employment. Due to this, no disciplinary hearing was held in the circumstances, and the Respondent accepted that the Applicant was in breach of their contract, and the contract was terminated.
It is vital to remember that every case will bring a unique set of facts and circumstances. As such, each case should be treated on its merits and be appropriately considered. In the above case, it was clear and further proven on a balance of probabilities that the Respondent never dismissed the Applicant as alleged. It was further confirmed that the Applicant had intended to desert their post and that the Applicant effectively terminated their employment. The Respondent had proof of the numerous attempts to contact the Applicant but did not hold a disciplinary enquiry in the circumstances. For cases like the above, an obvious distinction must be made between desertion and absenteeism, as the two concepts vary considerably. It was ultimately found that there was no need for any disciplinary procedures to be held as the Applicant had terminated their employment in the circumstances. As such, there was no dismissal, as alleged.
As such, it is critical that the matter be dealt with appropriately when an employer suspects an employee is deserting their post. It is not enough to assume that an employee has decided to desert. Suppose an employer intends to succeed at the CCMA, claiming that the Applicant deserted. In that case, they will need to prove that a desertion process was followed or prove that there was an obvious intention to desert from the Applicant’s side, where they had effectively terminated their employment. Regardless, proper records of all attempts to contact any employee who had deserted should always be kept, as it could make all the difference.
Article By: Wesley Field
Provincial Manager – CEO Bloemfontein