Is James' failure to return to work absenteeism or desertion?
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.
, 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.
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?
*********** Advertisement ************
What can you do when you think your employee's gone AWOL?
Your employee hasn't shown up for work all week. And you have no idea if he's ever coming back to work!
You've tried getting hold of him to no avail.
What can you do when you think your employee has absconded?
You have to follow the right process before you dismiss
to find out how to deal abscondment
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:
He's absent without your authority;
He hasn't been in contact with you to tell you why he's absent; and
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.