18/01/2023
Finding Nemo
By Jan du Toit
After the festive season many employers will be left in the dark regarding the whereabouts of some of their employees that have failed to return to work. Did the employee find another job, perhaps fell ill, won the lotto, found new love, and cannot or will not return to work?
The reality is that the employer will not know and can therefore not assume that the employee has no intention to return to work. In such circumstances the onus rests on the employer to establish whether the employee will return to work or not before termination of employment may be considered.
The Oxford dictionary defines the word ‘abscond’ as leaving hurriedly and secretly. It can therefore be said that the act of absconding means that one does not have the intention to return to work. In circumstances where the employer does not know whether the employee will return to work or not, the employer will have to establish this before the employee can be dismissed. It is therefore common practice that un-communicated and unauthorised absence for a period of more than three or five days, depending on the employer’s disciplinary code, will be dealt with as abscondment.
1. Communicated absence from work cannot be dealt with as abscondment because the employee indicated intent to return to work by informing the employer of his / her whereabouts.
2. Employers must refrain from acting hastily by terminating the employment of employees prematurely, even for extended periods of absence from work.
3. Should the now ex-employee return to work after termination of employment based on abscondment, he / she must be given the opportunity to appeal against such decision. The ex-employee will therefore be required to explain why he / she failed to report for duty, why he / she failed to communicate such absence to the employer and lastly, why he / she failed to respond to attempts made by the employer to establish contact.
So how does one establish whether the employee intends to return to work?
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https://www.labourguide.co.za/recent-articles/2928-finding-nemo