Dealing With Absconding / Deserting Employees in Public and Private Sectors
Desertion and Abscondment refer to cases where an employee stays away from work for a longer period, but with the clear intention not to continue with employment, this intention being evident from the employee's conduct or communications.
In SABC v CCMA and Others (2002) 8 BLLR 693 (LAC). it was held that as ‘It is not desertion when an employee who is absent from work intends returning to work. Desertion necessarily entails the employee’s intention no longer to return to work. The employer would have to establish this intention in a fair process”
In SACWU vs DYASI 2001 7D LLR 731 (LAC). the court held that “Desertion on the other hand, requires the employer to infer an intention on the part of the employee, as a result of such employee’s conduct, that the employee has no intention to return to work”
The Labour Court in Jammin Retail (Pty) Ltd v Mokwane and Others (2010) 31 ILJ 1420 (LC), dealt specifically with the distinction between employees that have absconded in the public sector and those in the private sector.
It was held as follows at paragraph 13…..”with specific reference to public service employees: ‘The authorities are in agreement that such a termination is not a dismissal as the contract is not terminated by virtue of the decision of the employer but by the operation of law. In other words the employment contract is deemed to have been terminated due to absence from work by the employee and not the decision of the employer. This approach is generally applicable in the public sector and the same does not apply in the private sector.”
Section 17(5)(a) of the Public Service Act provides that ‘An officer, other than a member of the services or an educator or a member of the Agency or the Service, who absents himself or herself from his or her official duties without permission of his or her head of department, office or institution for a period exceeding one calendar month, shall be deemed to have been discharged from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.’
Section 17(5)(b) then provides that ‘If an officer who is deemed to have been so discharged, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executing authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that officer in the public service in his or her former or any other post or position.
In Hospersa & Another v MEC for Health (2003) 24 ILJ 2320 (LC) ,the Court held that where Section 17(5) of the Public Service Act applies:
‘Because the employees are discharged, they are deprived of all the rights and protections afforded by the unfair dismissal laws. As a discharge is deemed to be on account of misconduct, the employees are condemned before they have been given a hearing.
There may be reasons other than misconduct for their absence. After the employees have been deemed to be so discharged, and provided they, firstly, report for duty and, secondly, they show good cause, their reinstatement into their former or other positions may be approved subject to conditions (s 17(5)(b)).
When exercising their right to a hearing in terms of s 17(5)(b) the employees bear the onus of showing good cause. Section 17(5)(a) not merely restricts, but excludes the employees' right to a fair hearing before being found guilty and dismissed.’
In Grootboom v National Prosecuting Authority and Another10 (2010) 31 ILJ 1875 (LC) at para 56. the Court also dealt with Section 17(5) (b) and held that:
‘It is clear in my view that the requirement of good cause in terms of s 17(5)(b) of the Public Service Act entails the employee having to provide a reasonable explanation for his or her absence without authority. The duty is thus on the employee to provide the employer with a satisfactory explanation as to what were the reasons for being absent without authorization. The employer in considering whether or not to reinstate the employee has to exercise a discretion given by s 17(5)(b) of the Public Service Act. In this respect the decision by the employer has to be influenced by fairness and justice…The key factor amongst others, which the employer has to take into account, is whether or not the unauthorized absence was wilful on the part of the employee.’
The Court in PAWUSA and Another v Department of Education, Free State Province and Others (2008) 29 ILJ 3013 (LC), dealt with the facts that need to be shown by an employer before the application on Section 17(5) of the Public Service Act can be relied on. It was held as follows at paragraphs 15 – 16:
‘The provisions of s 17(5)(a)(i) clearly contemplate the existence of certain facts before an officer shall be deemed to have been discharged from the public service. These facts are:
• the officer,
• absents himself or herself from his or her official duties,
• without permission of his or her head of department, office or institution,
• for a period exceeding one calendar month.
Desertion – or abscondment – and the Right to be heard.
We all know that generally speaking, when an employee is dismissed, he has the right to be heard - he has the right to state his case. This applies even when a dismissal takes place in absentia - when the employee appears at work, is still has the right to state his case even know he has been dismissed. I came across an interesting case the other day - involving an employee who was dismissed because he made an application to take annual leave, the application was refused, but the employee - despite having been told that his application to take annual leave was refused, still went ahead and took his annual leave.
Evidence was led by the respondent employer that the applicant had applied for annual leave in accordance with procedure, but that his application had been refused and he had been telephonically informed of this refusal. Further evidence was led to show that another employee in the same establishment had tried to discourage the applicant from proceeding on annual leave. Further evidence led by the respondent was that the company procedure entailed the employee to complete an application for annual leave form, which had to be officially approved and signed by management before the leave could be taken.
The applicant was assisted at the arbitration by his union. The applicant's case was that since he commenced work with the respondent, he had always taken his leave in January of each year. The applicant stated further that in the past, he had never been required to wait for official approval before proceeding on leave. He stated that completing of the application for annual leave form, was sufficient because annual leave had never been refused.
Whilst the applicant was on annual leave, the respondent sent him a telegram instructing him to return to work immediately. The applicant stated that at the time he received a telegram, he was busy packing to proceed on annual leave, and he never read the telegram until a few days later. He said he was not in the least concerned about the content of the telegram because he firmly believed that he was entitled to take his annual leave, and he was under the impression that it had been approved.
The union stated that the dismissal was procedurally unfair because the applicant had not been informed of any verdict of guilt or innocence, that he had not been afforded an opportunity to state his case or plead mitigating circumstances, and furthermore the dismissal was substantively unfair because there had been no valid reason to dismiss him. The union stated further that the applicant had not been informed that is application for leave had been refused, and that in previous years the applicant had always merely completed the required form, and then proceeded on annual leave without waiting for any form of approval. The union contended further that even if approval was required, this rule had not been consistently applied.
The applicant stated that he went on leave because he firmly believed he was entitled to do so. The outcome of this whole issue was that it was unreasonable of the applicant not to read a telegram, which would have alerted him to the fact that he was absent on leave without permission. The arbitrator found further that the applicant had decided that he was going to proceed on leave, whatever the cost and that the applicant's action in doing that amounted not only to a breach of contract, but also to a gross insubordination - this based on the fact that he ignored the content of the telegram, which was a clear and lawful instruction to return to work. The applicant ignored it.
Thus when the applicant returned to work ,the employer had already accepted his repudiation of the employment contract. The respondent was entitled to conclude that the applicant had no intention to continue with his contract of employment, and the respondent terminated the contract accordingly. The applicant in this case was told that he could not go on leave but he was determined to take the leave and he did so.
The employer issued an ultimatum in the form of the telegram, for him to return to work or face dismissal. By ignoring this ultimatum to return to work the applicant aggravated his misconduct and clearly displayed his intention not to return to work. The arbitrator concluded that because of the applicant's repudiation of the employment contract which was accepted by the employer, the dismissal was found to be procedurally and substantively fair.
An interesting aspect of this case is that the employee, upon his return to work, was not afforded an opportunity to state his case - he was merely told that he had been dismissed. This shows that periods of unauthorised absenteeism from the workplace need not necessarily be confined to treatment merely on the fact of "unauthorised absenteeism." The implications can go much deeper, involving a repudiation of contract by the errant employee, as well as charges of gross insubordination, justifying dismissal. (SACCAWU obo Fortuin / Lewis Stores (CCMA) case EC 10889. 1999)