Many employers have found themselves in difficult situations where the employee fails to report for duty and the employer does not know of his / her whereabouts or the reason for the absence.
It will be easy for the employer to deem the contract of employment terminated and as a result refrain from taking any further steps. However, even where an employee has been absent from work, the law still requires that an employer takes certain steps before deciding that the employment relationship has been terminated.
The audi alteram partem rule is the core of our labour principles. In a situation where the employee’s whereabouts are unknown it is hard to afford him an opportunity to be heard before “dismissing” him.
Where the employee has been absent from work for three or more consecutive days and the employer has no idea where he is, the employer must first make all attempts to contact the employee and summons him to report for duty. This can be done by sending him a telegram to his last known address and/or a message on his cell phone. Should the employee still not report for duty or contact his employer then the employer should proceed with the next step.
The employer may then send the employee a letter stating that the employee’s employment has been terminated due to him deserting his duties. However it is important to mention to the employee that he has the right to make known his reasons for absence and appeal against the letter. For all intents and purposes it is not the employer terminating the employees’ services but a case of advising the employee that he has terminated his own service by failing to report for duty.
If the employee at a later stage decides to refer the matter to the CCMA or the Bargaining council the employer will be able to prove to the commissioner that the necessary steps were taken to try and locate the employee’s whereabouts, however, nothing realised from the steps taken. The employee himself will have to give an exceptionally good explanation as to why he failed to inform the employer of his whereabouts and in many instances they fail to do this.
It is imperative to distinguish between absence without official leave and desertion. It has been held by the CCMA that in cases of desertion also known as “termination of employment by absconding”, an intention not to return to work must be established.
The conclusion here is that;  by following all the necessary steps before accepting that the employee has repudiated his contract of employment by deserting his duties, will put the employer in a better position to argue his case before the commissioner should the employee refer the matter at a later stage.

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  • Sylvia F. Hammond

    Hi Constance,
    Thanks for your question. On the information you give, I would answer as follows:
    The information in the main posting about giving the employee a hearing do also apply here.
    So although there have been previous warnings, it is still necessary for this incident to give the employee a hearing about what are the circumstances in this case. The hearing itself can be quite informal, but it is necessary to have records of exactly what happened in this case, to give the employee a chance to explain. Then take into account the previous history in making the decision.
    One of the most important aspects of an employment relationship is trust. It sounds from what you say, that the trust has broken down because the employee is not paying attention to the requirements, and can’t be trusted. That is an important factor in reaching a decision to dismiss.
    Make sure that every step is documented.

  • Constance Sanelisiwe Gumede

    If the employee has been dishonest failed failed to be loyal to his employer and has been warned several times each time he was found guilty of his acts, can the employer terminate the employment contract of the said employee?

  • MillieRasekoala

    I have an employee who has been absent for two months stating he is sick. I have asked for a doctor’s certificate to no avail. I have been paying him but I am now of the opinion that he is taking advantage.