Concilium Logo - revised - Jan 2020

Your Local Labour Consultancy

Absence vs Desertion vs Abscondment

ABSENCE VS DESERTION VS ABSCONDMENT

 

It is trite that if an employment relationship exists between an employer and employee, the employee is expected to perform their duties, and the employer is expected to remunerate the employee for the duties performed. 

 

But what happens when an employee fails to report for duty without obtaining leave or permission.  Does the employment contract automatically end?  What recourse can the employer take in such instances?

 

In considering the above, it is important to first differentiate between absence, desertion, and abscondment. 

 

In labour related terms, absence can be described as the failure to report for duty.  This could be with or without permission (leave).  However, the failure to obtain permission could amount to misconduct, which in turn could lead to disciplinary action, and even dismissal. 

 

Desertion, on the other hand, can be described as the deliberate action of the employee to leave the workplace with the intent of terminating their employment relationship.  In such a case, the employee has no intention of returning to work.  Considering this, if an employee did not report for duty for an extended amount of time, (for example for being arrested), but then reports for duty one day, the employee should rather not be charged with desertion, but for absence.     

 

Similar to desertion, abscondment can be described as the deliberate act of evading legal or disciplinary proceedings of his employer, through their deliberate act of absence or desertion, with the intent of not returning to work.

 

Considering the definitions, it is usually best practise to rather charge an employee with absence without authorisation or permission, rather than desertion or abscondment.  In cases where an employee is charged with desertion or abscondment, the onus is on the employer to proof that the employee had truly repudiated their contract with their intention not to return to work.  In cases where the employee is charged with absence, the onus on the employer is merely to proof that the employee had been absent without permission or valid reason. 

 

This notation was support in the Labour Court case Khulani Fidelity Services Group v CCMA and Others [2009] 7LLR 664 (LC), where the Court held that unauthorized leave would only constitute desertion if the employee had fixed intention never to resume work.  In this case, the employee had actually sent a medical letter to the employer, through which the employee indicated that they are too ill to work.  The Court considered this fact and held that it had been unreasonable for the employer to have concluded that the employee had deserted their post. 

Moonlight Over The Ocean by Christian Lagereek


 

In another case of Mofokeng v KSB Pump (2003) 24 ILJ 1756 (BCA), it was held that employers are entitled to terminate an employment contract if the length of the employee’s absence is uncertain.  In other words, if the employee would be absent for an extended period, without an expected date of return, it would be reasonable to terminate the employment contract. 

 

However, the process of dismissal must still be in accordance with fair procedure and that the employer had a duty where possible to establish whether an employee had any intention of returning to work.  It is therefore necessary, where the employee could be found, and is able to attend, that the employee must be invited for a disciplinary hearing to determine the intention of the employee.

 

It is best practice to have a set policy in place to deal with matters of absence.  This will ensure that the company take consistent action against such forms of misconduct, and that the employees are given a fair opportunity to explain the reasons behind the absence.  It would also be beneficial if the policy explains the exact penalties for such forms of misconduct, so as to not leave anything unclear.