Let's assume one of your employees doesn't come to work for two weeks. He doesn't contact you and you have no idea if he's coming back to work or not.
You decide to treat the matter as a case of absconsion and try all means to get in touch with him. You find him. But he tells you he isn't coming back to work.
You're now wondering if you still need to hold a disciplinary hearing.
Read on to find out the answer so you can deal with this absconding employee legally and avoid losing at the CCMA.
Not sure if you should hold a disciplinary hearing when an absconding employee says isn't coming back to work? Here's the answer
The general rule when it comes to an absconding employee
is, if you contact him and he says he'll come back to work, you need to take disciplinary action for misconduct. You must hold a disciplinary hearing and give your employee a chance to state his case.
If, on the other hand, you get in touch with your employee and he tells you he isn't coming back to work, you don't need to, by law, hold a disciplinary hearing, but it's in your best interest to hold it anyway.
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AWOL! Your guide to dealing with employees who abscond
is a step-by-step guide on the process you need to follow to make sure you deal with absconded employees correctly and effectively.
With it, you can confidently deal with absconding employees while protecting yourself and your company from an unfair dismissal case.
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Why it's still necessary to hold a disciplinary hearing when an employee who's absconded says he won't come back
The Labour Law for Managers Loose Leaf Service
explains that even though an absconding employee tells you he won't return, the courts have, in the past, said accepting that your employee has cancelled his employment contract amounts to a dismissal.
This means your employee can challenge the fairness of his dismissal at the CCMA under the Labour Relations Act
if he wants to. If he wins, you may have to take him back (with back-pay) or pay him up to 12 months' salary in compensation.
So rather hold the disciplinary hearing in absentia. When you present evidence during the hearing, explain that you have clear-cut evidence from your employee that shows he isn't coming back to work.
In this case, chances are, the Chairman of the hearing will make a finding for dismissal.
This will hold up under challenge at the CCMA or the Labour Courts in terms of substantive and procedural fairness.
Just bear in mind that, if your employee comes back at a later stage, you must give him a chance to appeal his dismissal.
There you have it: You don't have to hold a disciplinary hearing in an absconding employee says he isn't coming back to work. But, we strongly advise you do. This way, you effectively deal with the absconding employee legally and avoid losing at the CCMA later on.
PS: For more information on how to deal with absconsion, get your hands on AWOL! Your guide to dealing with employees who abscond.