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    This question still baffles many employers - and not only employers, but let us say it baffles many people. The employee has "disappeared."  Up comes the question " the employee has deserted. When am I entitled to dismiss?" He has been absent from work for the past 5 days, 12 days, or whatever - and has not notified the employer of the reason for the absence. The employer has tried to make contact without success - the employee no longer are resides at the address on the employer's file.


    Colleagues have been requested to try and locate the missing employee - but they either refuse, or say that they have been unsuccessful. The employer has to make a decision. He must decide whether or not this employee has deserted, and if so, does the employer have the right to terminate the contract of employment? It is not a decision to be made lightly - because even although the employee may appear to have deserted, thus repudiating the employment contract, or, if you like, places himself in breach of contract. The employer terminates the contract based on the employee's repudiation or breach.


    Therefore, the employee does not "dismissed himself", and nor is it a resignation, but in fact the employer has  dismissed the employee. As a consequence, the door to a dispute of unfair dismissal is opened. It is this possibility - of being dragged off to the CCMA with an unfair dismissal dispute - is the reason why so many employers, under these circumstances, are simply afraid to ring that final bell. In Seabolo v Belgravia Hotel [1997] 6 BLLR 829 (CCMA), case number GA 1288,  the question of what constitutes desertion was addressed.


    Briefly the applicant worked as a barman for the respondent. One evening, the applicant was informed that his mother was ill in Rustenburg, and that he should visit his mother.  The employer agreed to give him one day leave. Upon arrival in Rustenburg the employee found his mother in hospital and decided to take her to a traditional healer.  He returned to work some 6 days later (without, in the interim, having contacted the employer), only to be informed that he had been dismissed and another person employed in his job.


    The question arose - under the circumstances of the matter, did this employee desert and abandon his employment? The employer knew the circumstances (the sick mother) , and the employee had permission to go off – albeit even only for one day. When the employee did not return to work after 1 day, should the employer not have considered the fact of the sick mother, and should she not have considered the possibility that the illness was serious, and thus his employee had been delayed ?


    The issue that the applicant required the CCMA to consider was whether he had been unfairly dismissed, taking into account that there was no disciplinary enquiry, and that the reason for the dismissal was not a fair reason. Thus the question arose - did the applicant and desert, resulting in his dismissal? As is usual, there are always conflicting versions. The owner of the hotel did not have a relief barman to stand in for the employee when he went off to visit the sick mother. The employer's version was that she informed the employee that she had several other duties to attend to, but as soon as she had finished these tasks she would relieve him.


    At about 4 pm, said the applicant, he packed away his liquor stock in his cupboard, cashed up, requested his customers to move to another bar, closed his bar, went to the employer's office and handed in his keys. According to the employer, the employee came to the office, threw his keys on the table, and said he wanted his money as he was leaving. The employer paid him and he left the office. While in Rustenburg attending his sick mother, and taking her to the traditional healer etc, the employee did not telephone his employer from the hospital, and nor did he send any messages.  His only explanation for not telephoning from the hospital was that he was "confused".


    It was found that no evidence emerged at the arbitration to indicate that the employee and had no intention of returning to his shift the following day, as arranged with the employer. As we all know, normally "the intention not to return to work" is one of the essential elements in concluding that a desertion has taken place. The following is quoted in the arbitration award :  " desertion is distinguishable from absence without leave, in that the employee who deserts his or her post does so with the intention of not returning, or, having left his or her post, subsequently formulates the intention not to return. On the other hand, the AWOL employee is absent with the intention of resuming his or her employment."


    The arbitrator observed further that "most deserters do not inform their employer that they are abandoning their job - they simply do not turn up for work." How then, does the employer establish whether or not the employee has the intention of returning to work? It was further observed that "there are those instances where the employee does inform the employer that he has no intention of returning to work." In our experience, this practice is becoming increasingly frequent, and is done under the "disguise" of the employee giving 24 hours notice to an employer, or giving what is now commonly known as " resignation with immediate effect."


    Secondly," the employer can make this deduction (the intention of not returning to work) from the facts of the matter. Some of those facts might be a total lack of communication from the employee, and the duration of the period of absence. The arbitrator observed that in this particular instance, it seemed obvious that the employer did not inquire into the reasons for the prolonged absence of the employee, combined with what appeared to be her unwillingness to discuss the matter with him when he returned, reflects that she did not have any facts on which to base the conclusion that the employee had deserted.


    Whilst appreciating the situation in which the employer found herself, and especially since she had not heard from the employee and did not know where to contact him, the arbitrator still felt that the employer or acted prematurely in assuming a desertion, and in employing another person.


    The final outcome was that the employee was reinstated. The lesson here is again, as we have pointed out so many times, that each case is unique. Each case has its own set of circumstances, and therefore any decision to dismiss must be carefully deliberated, taking into account all the facts and circumstances of the matter. This would include affording the employee a fair hearing if he does return to work after such a period of absence. In the case under review the arbitrator stated that it is necessary to conduct an inquiry, however in formally, to determine if there has been a desertion.


    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)

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