Ensure that the rights of absent employees are adhered to before dismissing

The law considers absenteeism over short periods (a day or two) without leave or without good reason as minor misconduct. However, when even short periods of absence become the norm amongst a workforce this can constitute an extremely serious problem for the employer. This is obviously because employers rely heavily on the presence at work of their employees in order to get the work done. It is therefore a major source of frustration for employers when workers are absent. Where such absence is repeated or takes place over a protracted period this frustration often turns into intense anger. This provokes the employer into wanting to get rid of the absent employee permanently so as to replace him/her with someone who can be relied on to be at work. 

However, such employers are often caught in the following vicious circle:

  • The employer has an employee who is absent without leave
  • The employer needs to hold a disciplinary hearing in order to get rid of the employee in a legally compliant manner
  • But the employee is absent and the employer has no way of knowing whether the employee will be coming back
  • The law says that employees are entitled to participate in disciplinary hearings brought against them because of the employee’s right to defend his/her case
  • But the employer is unable to get the employee to the hearing because the employee is absent and cannot be located.

That is, the very offence of unauthorized absence is preventing the employer from disciplining the employee. In their resulting anger, frustration and confusion employers often act before checking what the law allows them to do. They either:

  • Immediately take the employee off the books and record that he/she has dismissed himself/herself.
  • Hold a disciplinary hearing in the employee’s absence and fire him/her.

Employers are not entitled to work on the assumption that the employee has dismissed himself/herself. The courts have repeatedly said that, unless the employee clearly resigns, he/she has not terminated his/her employment. This raises the question as to what constitutes resignation. In my view resignation can be indicated in three ways:

  • Firstly, a letter or note from the employee stating that he/she is leaving the employer’s employ
  • Secondly, an oral statement by the employee such as ‘I hereby tender my resignation’ and the employee also packs up his/her things, physically departs and does not return by the employee’s next shift. Section 37 (4) of the Basic Conditions of Employment Act requires notice of termination to be in writing unless given by an illiterate employee. However, in my view, the employee’s failure to put the resignation in writing would not necessarily invalidate it if his/her actions made it clear that he/she was leaving. However, employers should act with great caution in such circumstances.
  • Thirdly, the employee leaves without saying anything and goes to work full time for another employer in a permanent post. In my view this could constitute tacit resignation. Again, employers should act with great caution in such circumstances.

Where employers fail to exercise caution in dealing with employees who ‘disappear’ they usually end up on the losing end at the CCMA. For example, in the case of Siswana vs Thomas Restorations (2007, 1 BALR 12) the employee disappeared for a month after informing the employer telephonically that he was at home attending to family business. The employer held a disciplinary hearing in the employee’s absence and fired him. The arbitrator accepted that the employee had previously received several warnings for absenteeism. The arbitrator also found that the employee had been informed, when he phoned in, that he would face dismissal if he did not return to work the following day. The arbitrator found further that, after the first phone call, the employee had not attempted to contact the employer again. Despite making these findings the arbitrator still found the dismissal to be unfair because the employer had failed to attempt to contact the employee at his home and had failed to grant the employee a hearing when he returned after a month.

In the light of this decision employers are advised to get proper labour law advice before acting against employees who break the rules.