Clear guidelines exist in abscondment cases
Case law has, for some time now, established laid down procedures and requirements which must be followed when an employee absconds and the employer knows the whereabouts of the absent employee.
In circumstances where an employee absconds, deserts or sis simply absent without leave, employers frequently erroneously conclude that the missing employee has dismissed him or herself; nothing could be further from the truth. It is not possible for an employee to dismiss themselves; only employers can initiate dismissal.
To begin with, it is precisely for these kinds of cases, amongst many other good reasons, why an employer should know and maintain an employee’s personal information including their residential and/or postal address. There are times of course when employees move residence and do not inform their employer of this fact, but it is the employee not the employer who is negatively affected by this, as the employer is only ever expected to communicate with an employee at the address given to them by the employee.
So, if the employer corresponds with the employee at an outdated address, the employer cannot be held liable.
The primary case relied upon in directing employers as to how to address a scenario wherein an employee absconds is South African Broadcasting Authority v CCMA (2002), quoted recently in a Labour Court judgment addressing the question of, inter alai, dismissal on grounds of absence – Jammin Retail (Pty) Ltd v Mokwane & others (JR 2784/09).
The Jammin Retail Labour Court judgment unsurprisingly made reference to the SABC case in outlining the obligations employers have when contemplating the dismissal of deserters. This judgment quoted the SABC which held that “Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the Audi alteram partem rule (always afford the other party an opportunity to defend themselves) before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty”.
Put simply, this means that when an employee goes absent, and especially when the employee fails to communicate with the employer, the employer must attempt to find the employee. This is normally undertaken by corresponding with them at the address they have provided the employer; there is a presumption that this is the correct address and that registered mail to this address will be received by the employee.
A written notice to attend a disciplinary inquiry for the absence ion question should be posted registered mail to the employee inviting them to the inquiry.
If they do not attend, the inquiry may ordinarily be held in the employee’s absence as the employer has afforded the employee to state his or her case, but they have waived their right to do so by not attending.
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