How to deal with desertion in the workplace

It is very important to distinguish between absenteeism without authorisation or permission and desertion. Absenteeism is when an employee does not show up for work at the required time and has failed to notify the employer of his reason for absence and his expected date of return. This absence tends to be short in duration. Desertion or absconding entails the employee's intention to no longer return to work.

Repudiation of the contract

The established law surrounding desertion determines that in those instances where the employee communicates an unequivocal intention not to return to work, the fact of desertion is established. Desertion is a material breach of the employment contract and this amounts to repudiation of the contract, which the employer then has the election of accepting or demanding specific performance. If the employer accepts this repudiation, the employment contract is terminated and the employee is dismissed.

In the South African labour dispensation the Labour relation act requires that all dismissal be substantively and procedurally fair. Desertion in and of itself is a fair reason for dismissal and to require an employer in the above circumstances to hold an enquiry, for the sake of form, would be silly, and if the provisions of Clause 4 (4) of the code of good practice did not excuse the holding of a disciplinary enquiry, common sense certainly would do so.

The problem stems from the cases where the employee simply disappears or has an unexplained absence. Mere absence is no more conclusive evidence of desertion (which is absence plus an intention not to return), than it is evidence of willful absence without leave (which axiomatically includes the intention to return, albeit at a time of the employee's choosing). This means that it is critical that the employer establish the intention of the employee.

If it is a case of the latter, the employee should be afforded a hearing if one of the following applies:

1. If the employer's disciplinary code requires that a disciplinary hearing be held in respect of cases of unauthorised absence, or
   
2. If the employer has effective means to communicate with the employee.
   

The above is a long and administrative and labour intensive process, requiring registered letter or other communications. While this is required for a fair procedure, it is not conducive to good and effective business.
This brings us to the latest case from the Labour Appeal Court, Derrick Grootboom vs the National Prosecuting Authority & Others.

The effect of this case is, I believe, far reaching. If an employer has a clause or deeming provision in his contract that stipulates that if the employee absents himself from his duties for a certain period, for example five days, without having provided any excuse or reason for his absence and date of return he shall be deemed to have been discharged from the employer, then he would not be required to follow the above procedure.

The court determined that in such a case the employee's services would be terminated by operation of law. The employer would not have to determine the intention of the employee in cases of unauthorised absence as the employee knew at the start of his employment that should he fall foul of this clause his services would be terminated on the grounds of desertion. His services would therefore be terminated by the operation of law.

The court found that there is nothing in the above clause that prescribes:

1. That it would not take effect if the whereabouts of the employee is known to the employer,
   
2. That it does not apply if there are other less drastic measures which the employer may use,
   
3. There is also no requirement that the employee should be heard before the deeming provision applies.
   

All that is required is that the employer notifies the employee that the provision has taken effect.

If the employee should return after a period the employer should afford him the opportunity to state his case and then decide whether to reinstate the employee or not. The decision to not reinstate would then be open for testing at the CCMA or other forums, but does away with the lengthy process of investigating the intention of the employee.

This illustrates the importance of a properly drafted written contract of employment. I would advise all employers to either change their contracts of employment if they do not have such a constructed clause in their contracts or institute a desertion policy that is signed by their employees.