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.