Absence without leave (AWOL)
Some initial contextualisation regarding the concept AWOL:
As pointed out in a former blog dealing with absconding, a distinction must be drawn between absconding and AWOL. With absconding there needs to be a clear indication, derived from the facts and circumstances of a particular unauthorised absence, that the intent not to return to work is evident.
As far as AWOL is concerned, the following extract from the former blog, dealing with absconding, provides the necessary context:
“AWOL is generally associated with temporary absence from work without the required prior permission and/or a valid reason and/or also the lack of communication with the employer regarding the absence”.
Understanding leave within employment context fundamentally
Before one can properly assess the concept of AWOL, one has to understand the underlying principles behind leave within employment context.
At common law, and more specifically as it manifested in the “no work – no pay”-principle, any absence from work and the resultant failure to perform in terms of the employment contract, result in the forfeiture of remuneration for the period of absence.
Statutory law (acts of parliament), often informed by case law, develops the common law, and consequently creates a more balanced legal dispensation.
In this regard, it was realised over time that it is not healthy, productive, or fair to require an employee to work non-stop year in and year out without some form of break provided for in the employment contract. Furthermore, such breaks need to be affordable for the employee and hence need to be paid, albeit subject to some reasonable restriction and prerequisites. The common law position of “no work – no pay” therefore had to be improved upon.
To this end we saw the Basic Conditions of Employment Act (BCEA) making specific provision for different forms of paid leave, such as:
- Annual leave (Section 20 BCEA)
- Sick leave (Section 22 BCEA)
- Maternity leave (Section 25 BCEA)
- Family responsibility leave (Section 27 BCEA)
Understandably, there are rules attached to all these forms of paid leave which have to be adhered to in order to derive the benefits associated with these paid absences.
It is especially the adherence to these rules and prerequisites (often echoed and articulated in employment contracts), which becomes important considerations when dealing with AWOL.
Contractual improvement on the statutory provision of leave benefits
Nothing prevents the employer to provide better and more advantageous leave benefits to employees provided for in employment contracts. It is also often done by, especially, corporate employers in order to attract and retain employees.
From a fairness point of view, the enhanced leave provisions become the new minimum benefit requirement the employer has to honour. The employer may however devise its own rules in respect of those additional paid leave benefits in excess of what the BCEA provides for.
Statutory leave, with specific reference to annual leave, is supposed to be fully utilised by the employee and hence cannot accrue or to be forfeited. Leave granted in excess of the statutory provision may however be made subject to accrual and forfeiture on certain conditions and in certain circumstances, which are provided for in the employment contract and the employers leave policy.
Basic prerequisites for utilising the paid leave provision with reference to annual and sick leave, specifically
Homing in on AWOL against the above contextual background, the focus is placed on annual and sick leave, as it is usually within this context that AWOL finds application.
While some latitude is allowed for occasional medical incapacity enduring up to 2 consecutive days to still remain within the ambit of paid sick leave provision, any absence as result of medical incapacity extending beyond 2 consecutive days requires that a medical certificate, issued by a medical practitioner, to be produced in order for the employee to benefit from this paid leave provision. Same applies in case of absence on more than two occasions during an 8-week period.
From a practical point of view, the employer may require prior notice of absence for medical reasons, or, where such prior notice is not possible in the circumstances, as soon as reasonably possible thereafter.
Once the paid leave provision, statutorily provided or provided in the employment contract, has been exhausted, the common law position of “no work – no pay” becomes applicable again and may conditional unpaid leave be resorted to in deliberation with the employer.
Annual leave is incrementally accrued during the course of 12 months of employment, at one day’s leave for every 17 days worked. From this follows that, technically, an employee is only entitled to take annual leave after he/she has worked for a 12-month period. The employer then must approve the accrued annual leave within the period of 6 months following on the date the annual leave accrued.
The employer is afforded this latitude to grant leave in order to allow the employer to stagger employees’ leave for operational reasons. From this follows that annual leave has to be taken when convenient to the employer and hence the requirement to formally apply for leave that has accrued.
It however became customary for employers to allow employees to take ad hoc annual leave days as it accrues incrementally during the course of the year and as the need arose. Obviously, the annual leave provision is decreased by the number of ad hoc days leave so taken.
Again, once the annual leave provision is exhausted, the “no work – no pay”-principle comes into play.
AWOL becomes applicable when the employee defies the rules and conditions related to the taking of paid leave provided for in the employment contract.
What do we glean from labour cases in general and case law in particular regarding the phenomenon of AWOL?
CCMA & Bargaining Council cases
There are several CCMA and Bargaining Council cases that dealt with the concept of AWOL.
While, strictly speaking not constituting “case law”, the following general principles crystalised from these cases:
- To distinguish between AWOL and absconding in respect of dispute classification
- Where the employer knows the whereabouts of the employee, a great deal more effort must be made to afford the employee a hearing before terminating employment.
“Hearing” within this context may include conducting a disciplinary hearing prior to dismissal or upon the employee’s return by way of a post-dismissal hearing. Fairly conducting such a hearing in the latter instance implies that the employer must gain as much information possible regarding the absence from the employee while being absent, albeit directly from the employee or from other reliable sources.
- Following a consistent approach when dealing with AWOL within disciplinary context.
- Considering to what extent the unauthorised absence, given the circumstances, impacted on the employment relationship.
- Making sure that the rule regarding absence from work is articulated properly in policy, specifying the need of timeous communication regarding the absence and the consequences in case of breach and that this is effectively communicated.
- Sincerely considering personal circumstances associated with the absence, especially where cultural aspects play a role.
- Not to resort to the sanction of dismissal lightly, especially where there are extenuating circumstances and a good service record to take into consideration.
I need to mention that some of these cases involved Government Departments where unique rules about unauthorised absence, incorporated in the Public Service Act (PSA), apply, which disposes with the necessity to conduct a disciplinary hearing prior to dismissal in certain circumstances (refer Section 17(3) of the PSA). I did not take these cases into consideration as its fairness principles have no universal application and differ significantly from the run-of-the-mill fairness requirements applicable in the private sector.
Labour Court, Labour Appeal Court and Supreme Court of Appeal
The one case dealing with AWOL which found its way progressively through all the above-mentioned courts and where all these courts followed a similar and consistent approach in their findings regarding AWOL, is the case of Kievit’s Kroon Country Estate (Pty) Ltd Mmoledi.
Just a precursor – In case of wilful and insubordinate disregard of the employer’s legitimate and well-established rules regarding absence from work being proven, there will generally be justification for appropriate and decisive disciplinary action, all relevant factors having been considered, not excluding even summary dismissal.
What the Kievit’s Kroon-case however emphasised is that one cannot, undiscerningly, adopt a culturally one-sided approach to the need for temporary, contingency based absence where cultural diversity underpins the composition of the workforce.
The SCA found that, in this case, so much more could have been done to balance the legitimate interests of both employer and employee, thereby making a meaningful compromise possible, but, sadly, that was not done.
For context, the employee requested 5 weeks unpaid time off to undergo traditional healer training, having received a calling from her ancestors to become a traditional healer. It was imperative for the employee to complete this training, as her failure to do so would seriously impact on her health and well-being, in accordance with her honest belief.
This request was refused and by way of a compromise, one week’s additional leave was granted by the employer. Despite reasonable proof of her predicament having been made available to the employer, it was dismissed in a narrow-minded way, which left the employee no choice but to disobey her employer’s instruction to report for duty on a date earlier than she intended to return from leave.
Finding in favour of the employee’s case, the SCA gave the following justification:
“(…) it is well- established that where an employee absents herself from work without permission, and in the face of her employer’s lawful and reasonable instruction, a court is entitled to grant relief to the employee if the failure to obey the order was justified or reasonable”.
The sum total of all to be learned from the jurisprudence on AWOL is for the employer to ensure that the rules regarding absence from work is well-established, well-communicated and consistently applied within the workplace.
However, and most importantly, the employer needs to approach every case of unauthorised absence with an open mind, especially where an exception to the rule could reasonably be justified in the circumstances.
J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP