What do you do with deserters? Part 2

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 We now to come into the second part of dealing with our abserters.

Just to recap on the problems we are faced with, the first is that the Labour Court has held that an If an employer or accepts the act of the employees desertion then it is not the employee who has resigned but rather the employer who has terminated the contract by dismissing the employee. Secondly, or as we saw last week, the CCMA seem to be of the opinion that if an employee is held in police custody then that is a valid reason not to attend work. This would seem to imply that the same conclusion can be drawn if the employee is in hospital or in fact, or incarcerated.

So does this mean that to the employer may not dismiss an employee who has disappeared without explanation until such time as that employee is unable to come forward with an explanation? Also we must bear in mind that whilst and explanation may be valid, it is not necessarily acceptable just because it is valid. For example, an employee who is habitually late for work may have the be valid excuse that public transport is lacking in the area in which he resides.

Now,  that is a perfectly valid excuse - he is late for work because of transport difficulties. But whilst that excuse is valid, it is not acceptable to the employer because it is the employees duty to make certain that he can get to work on time in accordance with his obligations in his employment contract. Therefore, the employer is justified in rejecting that excuse.

As far as our abserters  are concerned, what can we do? The employee has been absent for two weeks or three weeks or what ever, and it seems that what ever the reason it would be accepted by the CCMA. In addition, we are obliged to allow the missing employee the opportunity to defend himself and put forward his side of the story.

The only way as far as we can see is that the employer must follow establish procedure by firstly attempting to contact the employee, either by letter or telegram, or trying at least to establish his whereabouts by endeavoring to contact the family members. Should this fail, the only safe path that we can suggest is to place the employee on unpaid leave. Even if he does have annual leave to his credit, place him on unpaid leave.

Experience has shown that as soon as the flow of money of the money into the employee's bank account ceases, a miraculous recovery and reappearance of the employee takes place. In the meantime, or if necessary, you can the employee another person in the place of the missing employee, on a temp the contract which stipulates that the contract shall terminate after a maximum period of six months, or the return to work of the missing employee, which ever is the sooner.

In that way, should you employ another person, you will not be stuck with two employees should the deserter suddenly appear. If he does appear with into the six-month period, or you can then hold a disciplinary hearing and allow him to put forward his defense and to state his reasons as to why his employment contract should not be terminated. Depending on the decision of the chairperson, the employee were either be reemployed as from the date of his appearance or the date on which such agreement is reached, and the temporary  employment contract with the other the employee would be terminated.

In our view this seems to be a fair way to handle the matter, and provided the procedure has been properly recorded at every step along the way from the time the employee disappeared, the subsequent hearing at the CCMA should not prove to be too traumatic.

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