Does Management Have The Prerogative To Punish An Employee Who Absconds?

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What should an employer do when an employee is absent from the workplace for an extended period of time? What is the attitude of the CCMA if an employer dismisses the employee in their absence? What constititutes a resignation by an employee? There are many permutations to these questions. This week Ivan Israelstam points to some of the dangers in these cases, and cautions employers not to act in anger or in haste.


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Employers rely heavily on the attendance of their employees in order to get the work done. Therefore it is a major source of frustration when employees are absent, especially when the absentee disappears and is not contactable. When this is repeated or takes place over a long period, this frustration may turn into intense anger. The employer may want to fire the employee and replace them with someone who is more reliable.

While management has the prerogative to dismiss such employees after following proper procedure, managers are often caught in the following vicious circle:

  • The employer has an employee who is absent without leave.
  • The employer needs to hold a disciplinary hearing in order to get rid of the employee in a legally compliant manner.

    But the employee is absent and the employer has no way of knowing whether the employee will be coming back.

  • The law says that an employee is entitled to participate in a disciplinary hearing brought against them because of the employee’s right to defend their case.
  • But the employer is unable to get the employee to the hearing because the employee is absent and cannot be located.

The offence of unauthorised absence is preventing the employer from disciplining the employee. In their resulting anger, frustration and confusion, employers often act before checking what the law allows them to do.

They either:

  • Immediately take the employee off the books and record that they have dismissed themselves.
  • Hold a disciplinary hearing in the employee’s absence and fire them.

Employers are not legally entitled to assume that the employee has dismissed themselves. The courts have repeatedly said that unless the employee clearly resigns, they have not terminated their employment. This raises the question - what constitutes resignation?

According to Israelstam, resignation can be indicated in three ways:

  • Firstly, a letter or an email from the employee stating that they are leaving the company.
  • Secondly, an oral statement by the employee such as ‘I hereby tender my resignation’ and the employee also packs up their things, physically departs, and does not return by their next shift. Section 37 (4) of the Basic Conditions of Employment Act requires the notice of termination to be in writing unless given by an illiterate employee. However, the employee’s failure to put the resignation in writing would not necessarily invalidate it, if their actions made it clear that they were leaving. However, employers should act with great caution in such circumstances.
  • Thirdly, the employee leaves without saying anything and goes to work full time for another employer in a permanent post. This could constitute tacit resignation. Again, employers should act with great caution in such circumstances.

When employers fail to exercise caution in dealing with employees who ‘disappear’ they usually end up on the losing end at the CCMA. For example, in the case of Siswana vs Thomas Restorations (2007, 1 BALR 12) the employee disappeared for a month, after informing the employer telephonically that he was at home attending to family business. The employer invoked their management prerogative to hold a disciplinary hearing in the employee’s absence and fired him. The arbitrator accepted that the employee had previously received several warnings for absenteeism. The arbitrator also found that the employee had been informed, when he phoned in, that he would face dismissal if he did not return to work the following day. The arbitrator found further that, after the first phone call, the employee had not attempted to contact the employer again. Despite making these findings, the arbitrator still found the dismissal to be unfair because the employer had failed to attempt to contact the employee at his home, and had failed to grant the employee a new hearing when he returned after a month.

In the light of this decision employers are advised to get proper labour law advice before using management prerogative incorrectly.

By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: [email protected]. This article first appeared in The Star, and edited by the Consulting Editor Portal Publishing.

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