Abscondment is all too common in the workplace. For instance, an employee goes on leave or even lunch and doesn’t come back to work. And you even get the impression he doesn’t intend to return. But don’t be fooled. It’s not that easy to deal with abscondment. One wrong move could land you at the CCMA. Make sure you’re on the right side of labour law. Read on to discover how the CCMA has dealt with cases of abscondment in the past so you don’t put a foot wrong.
According to Wagner du Toit Attorneys, ’employers are frequently under the false impression that they have a solid case against an absconding employee who referred the case to the CCMA. And to most employers’ surprise, the CCMA require proof from the employer that the employee did indeed abscond and of the efforts by the employer to trace the employee.’
Discover how the CCMA has dealt with abscondment cases so you can avoid making the same mistakes
- Establish your employee’s whereabouts: To prove your employee’s absconded from work, first establish a clear and unequivocal intention to abandon work. The Labour Law for Managers explains that in the case of Mofokeng v KSB Pumps (2003) 12 BALR 1342 (MEIBC (Metal Engineering Industries Bargaining Council)) the Arbitrator held in Mofokeng’s favour after it deemed his dismissal while he was in prison as unfair. The reason? His employer should have established his whereabouts before dismissing him.
- Employees have the right to be heard: You must give an absconding employee an opportunity to convince you he had a good reason for being absent.
According to the Guide, in Moganedi v Sonpark Kwikspar (2003) 9 BALR 104 (CCMA) the CCMA held that the dismissal of an employee when she returned to work after allegedly being abducted was unfair because the employer had made no attempt to verify the reason for her absence. - Don’t simply demote an employee and then dismiss if she refuses to report for the new position In Mhlambi v CCMA & Others (2006) 27 ILJ 814 (LC) the employee had been unilaterally demoted from the position of surgical buyer to hospital porter.
This resulted in a significant decrease in the employee’s salary and status. When the employee refused to report to the position of hospital porter, the hospital alleged that she’d absconded and dismissed her.
But the Labour Court didn’t agree. It held that the decision to dismiss the employee was unfair and could be construed as a constructive dismissal.
Wagner du Toit Attorneys warns that ‘ignorance by employers about the correct legal process of dealing with abscondment in the workplace imposes great risks for the employer.’
So make sure you study these ruling carefully to avoid being on the wrong side of the law and incurring unnecessary costs along the way.
BY FSP Business