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Sunday, February 1, 2004
Legal minefield

Joe Manager has a perplexing problem. It’s high production season and his chief machine operator has disappeared into thin air. There was no obvious reason: there had been no dispute at the factory; he didn’t complain of being ill; nor had he mentioned any personal problems or family crisis. He simply left work at the usual time and no one has seen or heard from him since. All attempts to contact him have been unsuccessful, and his continued absence is impacting badly on production schedules. Joe is under huge pressure to rectify the situation, but what does he do?
Is Joe legally within his rights to assume that the absence without permission equates to the employee’s breaching his contract and therefore being responsible for his own termination of employment? Does the employee’s unexplained absence constitute desertion? Is a disciplinary inquiry necessary? What is Joe’s legal position if he employs a replacement and then the AWOL employee returns to work and cries foul?
If we look at CCMA findings, Labour Court and Appeal Court rulings on this issue, it is a minefield for employers, as there do not appear to be any clear legal guidelines. We have seen CCMA conclusions overturned on review by the Labour Court, and a different judgment reached in turn by the Labour Appeal Court.
Each case is decided on the individual circumstances, and a number of factors play a deciding role. The one common thread, on which legal arguments tend to be based in these cases, is what constitutes desertion and what constitutes absence from work without permission. In the matter of SABC vs CCMA & Others 2001, the Labour Court defined desertion as when the employee has no intention of returning to work, whereas in the case of absence from work without permission, the employee does intend to return to work.
The real problem arises from circumstances of unexplained absence. The means by which the employer establishes whether or not the employee intends to return to work is the critical point of the debate. Should the employee not make contact, the employer is expected to make every effort to get in touch with him. In some instances, an unexplained absence for an unreasonable period (unreasonable in terms of the employer’s operational requirements), will establish the fact of desertion. In the case of an employee who remains away from the workplace, whose whereabouts are unknown and who is out of the employer’s reach, it is plainly impractical to expect an employer to convene a disciplinary enquiry before reaching the conclusion that desertion has occurred.
For example, in Gouws vs Sentech Industries 2002, the Commissioner held that the dismissal of the employee, who was absent from work without permission for ten days and without contacting the employer, was justified. There was no obligation on the employer to hold a disciplinary inquiry if the employee’s whereabouts is unknown.
But be warned: if it can be proved that the employer can communicate with him, then the law requires the usual procedure to be followed – failing which, a case of unfair dismissal may be brought against the employer. In the SABC case, the employee concerned was initially dismissed, but later informed by the employer that the dismissal was withdrawn and that he was required to return to work. Despite several letters sent by the employer to the employee, the latter refused to return to work. A letter was then sent on 4th December 1997 in which the employee was informed that should he not report for work the following day, he would be regarded as having absconded. The employee did not report to work the next day. On 12th January 1998, he was sent another letter in which he was advised that his services had been terminated with effect from 5th December 1997. The employee then referred an unfair dismissal dispute to the CCMA and the question arose as to whether a dismissal had taken place. The CCMA Commissioner held that there had been a dismissal. On review, the Labour Court agreed that a dismissal had in fact taken place. The matter was then referred to the Labour Appeal Court – which held that if the employer can communicate with the employee, it is the employer’s duty to attempt to hold a hearing prior to dismissal.
In another case, Lebowa Platinum Mines Ltd vs CCMA & Others 2002, it was held that the desertion of an employee constituted a repudiation of the contract of employment. However, this repudiation does not, in itself, bring about the termination of the contract. The employer must accept the repudiation by communicating with the employee in some way, and it is the acceptance that constitutes a dismissal. The Court also stated that it was the employer’s duty to conduct a disciplinary inquiry if and when an employee returned to work. However, this can only be done if the employee makes himself available.
An interesting case of an employee’s objecting to a transfer to another region was SACTU vs Dyasi 2001. The employee was transferred from Newcastle to Johannesburg. She then requested to be transferred back for personal reasons, and negotiations on this issue took place. In the interim, the employee took two weeks’ leave, at the end of which she reported back for duty in Newcastle, her argument being that it had been agreed. The employer disagreed and required her to report for work in Johannesburg, failing which her absence would be regarded as abscondment. The employee referred a dispute to the Industrial Court, which found that her dismissal was unfair. On appeal, the Labour Court found that the employee should have reported for duty in Johannesburg; that because she had deserted, she had not been dismissed. The Labour Appeal Court took a more equivocal approach and concluded that the employer had a real choice: it could have transferred the employee and not have terminated the contract. Therefore it was found that the employer had terminated the contract of employment.
These disparate findings by various courts show that there is a very fine line between what constitutes dismissal by the employer and what constitutes desertion or repudiation of the employment contract by the employee. It is therefore vital to seek professional help or legal assistance in dealing with a case of absence without permission. By Sandesh Singh, Attorney and head of the industrial relations division of Europ Assistance Worldwide (SA) (Pty) Ltd

Copyright © Insurance Times and Investments® Vol:17.1 1st February, 2004
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