When an individual signs an employment contract, their contract must contain information regarding when they are expected to work. While annual and sick leave allow employees to stay away from work, these are limited.
Desertion is when an employee has left their place of work and does not appear to have any intention of returning. It's important to understand that desertion is different from Absent Without Official Leave (AWOL) which suggests that the employee has the intention to return to work.
A recent case brought before the Commission for Conciliation, Mediation and Arbitration (CCMA) after the South African Broadcasting Corporation (SABC) dismissed an employee has highlighted desertion.
The CCMA ruled in favour of the dismissed employee and found that the employee had been unfairly dismissed and rendered an award in his favour. The SABC then sought for this decision to be set aside on review.
Labour Law expert Osborne Molatudi says it could be easy to prove desertion in layman's terms. This can be observed if an employee is acting in breach of their contract.
When an employee signs a contract, they inform an employer that you will be available to work during a particular time period. If you are then absent and your employer sends you reminders to come to work and it is ignored, an employer is within its rights to consider terminating your employment contract.
However, it is more difficult to prove desertion in a labour law perspective as employers must follow due process
To prove desertion, employers must send the instructions or reminders to that employee and clearly indicate that if that employee does not return to work by a particular day, then that employee's absence can be regarded as repudiation.
The employer can then indicate that the repudiation of the contract of employment will then be accepted from its perspective.
South African labour law does not necessarily stipulate a time period on how long an employee must be absent for labelled “desertion”. However, the CCMA says this may not be less than five working days.
