Labour Compass 8 - Desertion
A subject related to absenteeism, which was dealt with in the last Labour Compass newsletter, is the subject of “Desertion”. When does an employee desert or abscond from employment? What does it mean when an employee absconds? What must you do when an employee deserts or absconds or is absent from work for an extended period of time without contacting you?
An employee deserts or absconds when he leaves your employment with no intention of returning. To accuse someone of deserting their employment you would have to show that they had no intention of returning to work. When an employee genuinely deserts or absconds this would be a repudiation of contract by the employee.
What if an employee is absent from work for 3 days without notifying the employer of his whereabouts?
When an employee is absent from work without permission or a lawful reason, you may take disciplinary action against that employee. Such an employee may be charged with “Unauthorised absence from work” or “Breach of contract” for example.
Remember to take into account your company disciplinary code and procedures when disciplining employees for the above. Be consistent with your code and between employees.
After how many days of absence does an employee abscond?
There is no clear rule of law dealing with this. However, there are different rules for different industries in their respective collective agreements. Remember, to show that an employee deserted, you would have to show that the intention was not to return to work.
It often happens that an employee may return to work after an absence of 2 weeks or 3 weeks. This especially happens after an employee has taken annual leave or has been booked off sick for an extended period of time.
In the event that an employee returns to work after say 2 weeks of unauthorised absence i.e. without a medical certificate or prior permission, what should you do?
May you send the employee packing and then argue that the employee deserted?
NO! The employee returned to work and his intention therefore was not to desert. He may not be classified as a deserter. He is however guilty of misconduct and misconduct procedures should be used to deal with the employee.
So, what should you do in this case?
You need to charge the employee with unauthorised absence from work and breach of contract. You need to hold a disciplinary hearing. You need to ensure that you follow fair procedures and once the employee has been found guilty of the charges you would most likely have grounds to dismiss the employee.
It is best practice to hold a disciplinary hearing and to dismiss for unauthorised absence rather than to argue that the employee absconded or deserted. There is clear case law on this and to deviate from this principle is to do so at your own peril.
If you have any further queries on this matter or other labour related matters, please email me. Should you wish to know the specific rules regarding desertion for your specific industry, send me an email and I will reply with industry specific rules that are relevant for you.