I was forced to be herd man in my farm last December simply because my employee decided to abscond or desert whatever you may call it. A few days later he reported for duty with a lame excuse that “I had lost my mobile phone and was sick”. Fair enough! I can bet with my last P10 that you have been in my situation one way or another. Just the past week, one of the local newspapers reported that players of locally based team in Botswana deserted a club (in short, the players failed to report for duty after the festive season). In a capitalist society, employers have the power to hire and hire! What is my right here as an employer in the case like this one?
This question still baffles many employers - and not only employers, but many people. The employee has "disappeared." Up comes the question "the employee has deserted. When am I entitled to dismiss? 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 although the employee may appear to have deserted, thus repudiating the employment contract, or, if you like, placed himself in breach of contract. The employer terminates the contract based on the employee's repudiation or breach.
In terms of section 21(2) of an Employment Act - “The Employee shall be deemed to be in breach of a contract of employment if he is absent from work without the prior consent of his employer or his employer’s representative unless he has reasonable cause for such absence and as soon as it is reasonably practicable to do so, informs his employer or his employer’s representatives of that cause. Section 26(4) (l), persistent absence from work without permission warrants serious misconduct. This is a general enactment and provides for as to what will happen if an employee is absent from work without the prior consent of his employer. It is a general enactment because it will apply to any absence from work for whatever reason. The second of such provision is to be found in subsection 100(2) of the said Act, which deals specifically with the absence from work by an employee on the grounds of sickness. It is therefore a special enactment.
Common Law is not laws that have been legislated by Parliament, but rather arise mainly from Court judgments and general practice and precedent. It is a Law that has developed over the years, and is what people have come to accept as recognised norms and standards, and which are enforced by our Courts. An employee has a number of obligations under common law which he/she must meet and it should be noted that these obligations exist even if they are not specifically stated in the Contract of Employment; to provide the employer with his labour - i.e. to be at work. The Common Law rule requires an employee to continue to render service during the agreed hours of work. John Grogan in “Workplace Law” – Third Edition, at page 41 onwards states that failure to render service may take many forms: “ranging from desertion through absenteeism to unpunctuality”.
In such cases the employer is entitled to dock from employee’s wage an amount proportional to the latter’s absence. But not every absence from work will justify termination of the contract. In his publication – “dismissal” – (Juta & Co. 2002 – Reprinted 2004), Grogan states at page 107 that: In modern labour law, a distinction is usually drawn between absenteeism, abscondment and/or desertion. Absenteeism in turn can be divided into late coming, absences from employer’s workstation, absences from the workplace itself for short periods. Abscondment is deemed to have occurred when the employee is absent from work for a time that warrants the interference that the employee does not intend to return to work. Desertion is deemed to have taken place when the employee has actually intimated expressly or by implication that he does not intend to return to work”. The dividing line between absenteeism and Abscondment or Desertion is flexible.
What constitutes desertion and absenteeism? The question - under the circumstances of the matter, did this employee desert and abandons his employment? 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. 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. 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? 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 onus lies with the employer to prove the desertion.
Establishing the existence or otherwise of that intention is therefore critical. If the intention to leave is established, there is no need to hold a hearing. Previous Industrial court rulings on the issues like this suggested in some instances an unexplained absence for a reasonable period, that is to say, reasonable in relation to the employer’s operational requirement will establish the fact of desertion. In the instance of an employee who remains away from the workplace and whose whereabouts are not known and who is out of reach of the employer, it is plainly impracticable to impose the employer the obligation to convene a disciplinary inquiry before reaching the conclusion that the fact of desertion has occurred and in consequence of which he is entitled in response thereto to elect to terminate the contract. These issues are dependent on the relevant circumstances.
On the other hand, the AWOL employee is absent with the intention of resuming his or her employment." Many disciplinary codes prescribe that a number of days – usually three or more days must elapse before an employee is guilty of abscondment. Some codes provide that when the prescribed time expires, the employee will be “deemed” to have absconded or to have dismissed himself. As an HR Practitioner, this issue gives me sleepless nights of how many employers dismissed employees on the line of desertion. This approach is legally incorrect; employees are deemed to have deserted only when it is proved that they have formed an intention not to resume work. In such circumstances it is the employer that terminates the employment contract by accepting the employee’s repudiation.
In this approach, abscondment or desertion remains a disciplinary offence and the employees concerned retain the procedural right to present their cases if the assumption that the employee intended to abandon the contract turns out to be incorrect. It follows those employees accused of absconding are entitled to be heard before their contracts are terminated, provided that the employer is aware of the employees’ whereabouts and the employees wish to present their cases. This is one of the painful debates reflecting on my past experiences of cases of employees dismissed on assumption of desertion by employers and matters worse with HR practitioners failing to advice line of business on the technicality of the matter. HR Practitioners lets up our game and be partners that advice the businesses and employees on issues like the above discussed. I rest my case.