Defining absconding from work
It is important to distinguish between AWOL (“absence without leave”) and desertion or absconding.
Note – In this blog I use “absconding” and “desertion” in its different forms as interchangeable concepts.
The one and most crucial distinguishing factor is that of intent and more specifically, the intent not to return after embarking on unauthorised absence from work, which constitutes absconding.
Where no such intent can be derived from the circumstances, the unauthorised absence is a form of misconduct (AWOL), short of a repudiation of the employment contract and must be treated as such.
AWOL is generally associated with temporary absence from work without the required prior permission and/or a valid reason and/or the lack of communication with the employer regarding the absence.
Absconding, on the other hand, constitutes a repudiation of the employment contract by the employee, derived from the apparent intent not to return to work.
The required intent is essentially a matter of fact and in consequence of the Labour Court case: Khulani Fidelity Services Group v CCMA & others (2009) intent is generally inferred from the particular circumstances of the case, which includes the period of absence.
While an unusually lengthy period of unauthorised absence for no apparent reason could be indicative of absconding, a short duration of the absence need not necessarily be a disqualifying factor in respect of absconding if the remainder of the circumstances confirm such a notion.
In order to explain the latter point made, take for instance the hypothetical situation where two rival auto repair businesses are situated on opposite sides of a street in an industrial area – both businesses have a full view of the other business’s premises from across the street, which separates the two businesses.
An employee of Business A becomes involved in a heated argument with his foreman, the employee then aggressively took off his branded overall, throws it in the face of the foreman, gathers his personal belongings from his locker and walks over to the premises of Business B across the street.
This employee is then seen having an earnest discussion with the foreman of Business B, hands are shaken in apparent agreement of some sort, the employee is handed a branded overall of Business B, which he dons and starts working on a vehicle on the shopfloor. During a subsequent hearing held in absentia on the same day by the management of Business A, the employee’s employment is terminated due to him having absconded.
This little scenario sketch illustrates that while the unauthorised absence from work at Business A was relatively short in duration, it was evident enough that the employee most probably was instantly employed by Business B and that he had no intention to return to his work at Business A, constituting absconding.
Prerequisite measures to establish the fact of absconding
Arguably, not all cases of unauthorised and unexplained absences from work are as transparent as the example mentioned above and will probably require some level of investigation and the introducing of reasonable interventions before the absence can reasonably be categorised as absconding.
What needs to be done by the employer faced with unauthorised and unexplained absence of an employee, are the following:
- Actively endeavour to establish contactFirst and foremost, the employer should endeavour to establish contact with the absent employee by utilising whatever modes of contact available on record or are reasonably known or are to the disposal of the employer. Proof of such endeavours should by kept on record for future reference, as and when needed.
- Do not jump to conclusionsA caring employer would not upfront suspect desertion when being confronted with unauthorised and unexplained absence, but will leave room for the eventuality of some plausible explanation such as severe medical incapacity, abduction or even death.
- Follow a progressive trend in correspondenceIt is also advisable to send progressive messages to the employee, culminating (when not receiving any response) in advising the employee that persistent unexplained absence may lead to the inference that the employee deserted his/her position, which in turn may result in the termination of his/her employment.
- Ensure that substantive fairness prevails.From a substantive fairness point of view, it is crucial that, apart from the existence, knowledge, and legitimacy of the rule against desertion/absconding, (which may be common cause), the intention not to return to work must reasonably be derived from the circumstances, at least on a balance of probabilities. Furthermore, there must be the absence of a legitimate reason (“defence”) for the absence and of the lack of communication, while the rule concerning absconding has to be consistently applied in the workplace.Often an intent to return or not to return to work after a period of unauthorised absence can be gleaned from the interaction between the employee and management leading up to the employee’s absence.In In the Labour Appeal Court case: Pick ‘n Pay Retailers (Pty) Ltd v SACCAWU, CCMA, S Goldschmidt N.O. (2016) there was a dispute with management about the entitlement to take the leave the employee had in mind, which, in itself, can be an indication that the employee probably had no intention to stay permanently away from work, but rather to take the leave he regarded him being entitled to (rightfully or wrongfully).In case if illiterate employees, the employee is probably more inclined to associate the duration of the absence with the reason for the absence, than to pinpoint the return date on a calendar.When such employee’s home in the rural area, where his family lives, was washed away in a flood and he requested leave to go and rebuild his home, calendar time becomes less important or determinant in the employee’s mind than the actual time it would take to rebuild the home.In his mind, the employee obtained permission to go and rebuild his home and he will return to work as soon as this objective has been accomplished.In such circumstances, a possible misunderstanding of the duration of the absence should be anticipated by the employer and much more energy must be spent on achieving a meeting of minds with the employee regarding the actual duration of the leave of absence granted.
- Adhere to procedural fairness requirements.Procedurally, every reasonable effort must be made to ascertain the reason for the absence in order to facilitate an informed decision regarding the absence. This was emphasized in the Labour Appeal Court case: SACWU v Dyasi (2001).
Afford a returning employee a post-dismissal hearing. When it so happens that the employee eventually turns up at work after having been dismissed on account of having absconded, the audi alteram partem-principle still requires the ex-employee to at least be heard, ex post facto, regarding his/her absence.Unless the employee is able to provide a valid reason as to why his/her unauthorised absence could not reasonably be explained/communicated to the employer in order to avoid the eventuality of being regarded as having deserted his/her position, a reinstatement would not likely result from such post-dismissal hearing. This however does not absolve the employer from granting the ex-employee at least a hearing upon his/her return to work.In the above-mentioned Pick ‘n Pay-case the absence of a clear intent not to return to work and the fact that, on the dismissed employee’s eventual return to the workplace, no post-dismissal hearing was held, resulted in the dismissal being declared both procedurally and substantively unfair.
In summary:
Some employers explicitly state in their industrial relations policies that an employee will be regarded as having absconded when being absent for a defined period without permission and/or a valid reason and/or without communicating with the employer during the course of the absence.
There is nothing wrong with such a policy statement, but it presupposes a clear indication of the intent not to return to work, which intent cannot solely be derived from the factors mentioned above and would still require digging in deeper in order to uncover the true reason for the absence – obviously, within reasonable parameters.
In closing and for the sake of completeness, I need to highlight another distinction which should be drawn as far as absconding is concerned:
The concept of absconding is dealt with markedly differently between the public and the private sector.
The prerequisites for dealing with absconding mentioned in this blog are those that are specifically associated and practiced within the private sector.
In the public sector, the concept of absconding is legislated by means of specific statute, for instance the Public Service Act (PSA) where section 17 provides that where a public servant embarks on unauthorised absence for a defined period (a calendar month) the service of such public servant is terminated, in this case by operation of law and not by way of a decision taken by the employer. For obvious reasons I am not dealing in this blog with absconding in the public sector, as it represents and requires a significantly different approach by the employer resorting in its own league.
While (in the private sector) it may happen that a particular employee may decide to un-ceremonially abandon employment for a reason only known to him/her (thus absconding), not all seemingly unexplained absences may fit the definition of absconding and the missing link to search for is intent.
