Farmers are often confronted with the situation where farmworkers are absent without any word regarding their whereabouts. This has a huge impact on a business’s normal operations and bottom line, as most employers do not have the luxury of spare capacity concerning their workforce.
Absence from the workplace must be addressed effectively to ensure productivity. The Labour Relations Act’s Code of Good Practice provides guidelines to ensure fair labour practice in matters where dismissal is a possibility, including desertion.
When is an employee a deserter?
An employee who is absent from work for more than five days, who has not notified the employer or has no intention of returning to the workplace, is regarded a deserter.
Absence where the employee does not turn up for work at all, can be very difficult to manage. Employees have an obligation to inform their employers of their absence by any means possible. It seldom happens that there are no means whatsoever available to notify the employer of the absence.
What must the employer do?
The employer must be able to prove that the employee has no intention of returning to work – this is an extremely important point. The employer must therefore attempt to contact the employee to establish the reason for the employee’s absence, to urge the employee to return to work, and to inform the employee of the consequences of his/her absence.
We advise farmers to send an SMS or a letter to the employee’s last known address, as this will serve as proof of the attempts made to contact the employee. It is the employee’s duty to notify the employer of a change of address.
After the initial attempts to contact the employee, disciplinary measures can be taken if the employee does not return to work. The employer must send a notice of the disciplinary hearing to all last known contact details of the employee. A hearing can be held and may proceed in absentia, after which the employee may then be dismissed.
If the employee returns to work, the employer may request reasons for the employee’s absence and failure to notify the employer. Should the employee be unable to provide valid reasons, the employer may proceed with disciplinary action as per the disciplinary code. Valid reasons for not being at work and failing to inform the employer, can include hospitalisation or arrest for an offence that is not work related.
The disciplinary hearing
During the disciplinary hearing the employer must provide evidence attesting to the employee’s unauthorised absence, as well as the steps taken by the employer to contact the employee. The chairperson at the hearing then evaluates all evidence presented and proceeds to make a finding. When the employee is found guilty of absenteeism, the employer must notify the employee of his/her sanction according to the disciplinary code.
There are various factors to consider when deciding on the appropriate sanction:
- Length of absence.
- Reason for absence.
- Attempts made by the employee to contact the employer during his/her absence.
- Previous warnings for absenteeism.
- Whether there is a rule or policy requiring the employee to contact his/her manager/employer regarding his/her absence.
The employee’s position and type of work done.
- Whether the employer had to replace the employee.
Should the deserter be paid?
The principle of no work no pay applies. The employee is only entitled to payment of wages up to the last date that he/she physically worked. Any accrued leave pay due to the employee at the time of dismissal, should also be paid.
Employees who desert the workplace often approach the Commission for Conciliation, Mediation and Arbitration (CCMA) stating unfair dismissal. The onus is on the employer to prove that a fair process was followed and that the assumption that the employee had no intention of returning to work, was reasonable under the circumstances. It is therefore important to follow the prescribed steps to manage desertion as a business risk effectively. – Christo Bester, LWO
The LWO Employers Organisation assists employers to comply with labour law, and to use it to their advantage to protect their business. As a registered employers’ organisation with the Department of Labour, the LWO has the right to represent members at the CCMA. Contact the LWO at 086 110 1828 or email@example.com.