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Are you aware of the legal problems that arise if you charge an employee with desertion?

by , 27 January 2014
Dealing with desertion isn't child's play. One wrong move could see you ina legal dispute. Continue reading as we explain the legal problems that can arise if you charge an employee with desertion.

Charging your employee with desertion isn't a straight forward process. If you don't tread carefully, you'll face consequences.

Legal problems that arise if you charge an employee with desertion

Common law and desertion: According to the Labour Law for Managers Loose Leaf Service, common law allows you to allege your employee has breached a fundamental term of the employment contract when he deserts and shows no sign of returning. (I.e. he doesn't communicate with you or give you an explanation for unauthorised absence.)

And in terms of common law, this means you can terminate the contract and claim damages.

Alternatively, and only if the missing employee can be tracked down, you can elect to uphold the contract and demand specific performance. For example, your employee returns to work and continues his duties whether he wants to or not. You can claim damages as well for the losses you incurred during his absence.

Labour law and desertion: In South Africa, labour law and the contract of employment, in particular, is mainly governed or regulated by statutory law such as the Labour Relations Act, The Basic Conditions of Employment Act and the Employment Equity Act. Common law has now been supplemented by the labour legislation.

This means you can choose to rely on the common law remedy as outlined above, but it best to only dismiss an employee as prescribed in the Acts mentioned – which require that dismissal be fair.

Doing this will help you avoid a situation where the termination of the contract is legal in terms of common law, but unfair in terms of labour legislations.

Don't forget that desertion is a recognised offence in employment law context, even though there's no reference to it in Schedule 8 of the Labour Relations Act.

Now that you know the legal problems that can arise if you charge an employee with desertion, read this article as well. It's a guide on how to deal with deserters effectively.

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