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James hasn't returned to work after taking annual leave. Is this a case of absenteeism or desertion?

by , 07 January 2015
It's almost the end of the first week of the new year.

Now when your employee James went on annual leave in December, he told you he'd be back in the office on the 2nd of January. But he hasn't returned.

You haven't heard from him and you have no idea when he's coming back.

Your biggest dilemma is you don't know if this is a case of absenteeism or desertion. And you're afraid to act because you know that following the wrong procedure to deal with James could land you at the CCMA.

Don't worry. We've got you covered.

Read on to find out how to differentiate between absenteeism and desertion so you can deal with James effectively and avoid a CCMA case.


Is James' failure to return to work absenteeism or desertion?

 
Absenteeism is when your employee is off from work for a short period of time, without your permission. But there are clear indications he'll come back to work.
 
Desertion, on the other hand, occurs when your employee is absent from work or fails to return to work after an authorised period, such as annual leave or sick leave and evidence suggests he won't return.

For example:
 
  • His locker or desk is empty;
 
  • He's received his normal wages and annual bonus;
 
  • His co-workers don't know where he is. Or he's told them he's not coming back to work;
 
  • You try contact him but he doesn't respond; and
 
  • He isn't living at the address you have for him any more etc.
 
From these two definitions, we can conclude that James absence seems to be a case of desertion. This is because his annual leave is over and he isn't at work. What's more, he hasn't been in touch to let you know why he's absent or when and if he's returning to work.
 
But what happens now?
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Here's what you must do to deal with James' desertion

 
In terms of labour law, desertion amounts to a breach of contract.
 
The Labour Law for Managers Loose Leaf Service explains that your employee has a duty to provide his services to you in line with his contract. If he breaches his duty, he rejects his contract.
 
But this doesn't mean you can dismiss him right away.
 
Previous court rulings make it clear that desertion doesn't terminate an employment contract. It only terminates when you accept your employee's rejection of the employment contract.
 
What this means is, you first have to confirm that your employee's absence really is desertion. To do this, look for proof that he doesn't intend to return to work.


The following three elements must be present before you can consider your employee's absence desertion:

 
  1. He's absent without your authority;
  2. He hasn't been in contact with you to tell you why he's absent; and
  3. His intention is never to return to work.
 
While it may be difficult to assess if your employee has no intention to come back, you have to take reasonable steps to find him and his reasons for not coming to work.
 
If, after your investigation into your employee's whereabouts and reasons for absence, you find he definitely doesn't intend to return, hold a disciplinary hearing. You can then dismiss him if he can't give an acceptable reason for his absence.
 
Remember, following the wrong procedure when dealing with your employee's absence could land you at the CCMA for claims of unfair dismissal.
 
So now that you know how to differentiate between absenteeism and desertion, deal with James effectively so you can avoid a CCMA case.
 
PS: Since dealing with desertion is complex, we recommend you check out the Labour Law for Managers Loose Leaf Service. It explains what to do when:
 
  • Your employee returns to work after your hearing;
 
  • Your investigation tells you your employee intends to return; and
 
  • You can't determine if your employee intends to come back or not.


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