# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Absconding Deserting Employees

## Marq

Learnt a labour law lesson this week and thought I would share it with you so you do not make the same assumption. 

Occasionally we have had an employee that does not come back to work and we record desertion / absconded on the file and life goes on. 

This happened 2 months ago and a month later we received a con-arb from the ccma stating that we had unfairly dismissed this employee.  :EEK!:  

At the hearing that I now had to attend, I was informed by the commissioner that desertion/absconding is the employers problem not the employees.   :Fence:  

It would seem that the following is the case:-




> There is an incorrect assumption that if an employee has been absent from work without permission and has not communicated with the employer for a certain period, that such an employee has deserted (also referred to as absconded). Employers generally view such a situation as one where the employee "dismisses him/herself". 
> 
> In reality an employee only deserts when he/she leaves the work place with the intention of not returning. The fact that the employee ceased to tender his/her services, amounts to a breach or repudiation of the contract. The employer may "accept" such repudiation. The problem is often that the employer is unable to establish whether the employee has in fact deserted. There may be several reasons for the employee's absence. 
> 
> If it is not clear whether or not the employee has deserted, the employer must make an attempt to contact the employee. If successful, the employee must be notified of a hearing to establish the reason(s) for his/her absence from work. The employee's services may for all practical purposes be terminated if all reasonable attempts to contact the employee have failed. In this regard the Labour Court found that stopping an employee's pay could amount to dismissal.
> 
> If the employee returns to work at some future date, the employee must be afforded the opportunity to state his/her case. Notwithstanding the fact that the employee was dismissed as far as the employer is concerned, the safest approach would be for the investigation to take the form of any other investigation into misconduct. After the investigation, the employer must communicate to the employee the decision as to whether the employee is re-employed or reinstated or not, and preferably furnish the employee with written notification of that decision.


Fortunately we had our ducks in a row  :Thumbup:  and got off lightly but believe this situation can get nasty. Imagine 6 months (Considered the reasonable time test) later your wayward employee returns and gives some believable story - you are in for 6 months salary, leave pay, notice pay etc etc.  :Gun Bandana: 

Be careful out there.

----------


## duncan drennan

> The employee's services may for all practical purposes be terminated if all reasonable attempts to contact the employee have failed.


Do you have any idea what reasonable attempts would be? What kind of documentation should be kept? Could you tell us what documentation you kept in this regard?

You said you got off lightly...did you have to pay any fines?

----------


## Marq

Reasonable attempt is a letter/s or telegram and contact with family.

Thereafter hearing and disciplinary procedures and enquiry into why the employee did not pitch and what the problems were.

You are supposed to process this only if employee is present? Assume back and looking for job. Apparently its common and you are supposed to continue paying salary until you dismiss through hearing. It usual that they come back when bucks run out as no salary in bank and then the fun starts.

Key is also having the letter of appointment setting out end of contract details.

So I had the letter of appointment and a disciplinary hearing (employee not there) and a final scenario that said emloyee assumed to not be coming back assumed resignation (this is where I was told it is not so) . This was all considered ok - We just had not tried to contact. So I got "nice try" award and some sympathy.

You are placed in a position that asks - Will you take them back or do you want to pay them out notice pay etc. Niether puts you on a road to a full unfair dismissal scenario.

Fortunately then, the person lied as to their reasons for not pitching back at work and blamed the ccma for giving bum advise. :Big Grin:   End result was I had to pay some notice period of a few days R200.

----------


## Dave A

> Key is also having the letter of appointment setting out end of contract details.


Our employment contract is pretty clear on what constitutes desertion. It also places a duty on the employee to report the cause of their absence as soon as reasonably possible. The point is taken, however, that we should send a letter advising that employment is being terminated by reason of desertion - and perhaps giving ten days(?) to respond should they so wish.

On being liable for months of pay:
Surely the employee must indicate the nature of the leave being applied to their absence - and there is only so much "paid leave" options available... 
Thereafter, I would have thought it would be unpaid leave anyway.  :Big Grin:

----------


## Marq

Ah...yes this is logical but the labour law, ccma, commissioners and the system don't work on logic.

Examples given on a labour law web site included 
A guy who went to Kimberley on Company business and didn't come back to work for a while......His story was could not get back - got robbed, no money in bank to call or for transport - had to work down there for a while to get money to come back.
Another guy was stuck in prison for a few months - couldn't call or contact anyone.....

So this is a depends story.....and this is the new SA........They both could say they never intended to leave or resign and certainly did not want dismissal. Didn't understand your contract etc etc. Suddenly you are the bad guy again.

----------


## mchlsteyn

Your thread a great help but can you please direct me to the actual case (all I really need is the prescedent details)?

If I've done something wrong here please forgive.  I've never posted a thread before!

----------


## Marq

I cannot remember or find where my original research led me, but here is another source sighting the need to ensure that contact is made and the full story obtained before instituting dismissal proceedings.

*SABC v CCMA & Others (2001) (22) ILJ 487 (LAC)*

From the case - 


> "In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures."


and 


> "What constitutes desertion is of course a matter of fact. In some instances an unexplained absence for a reasonable period, that is to say, reasonable in relation to the employerâs operational requirements, will establish the fact of desertion. In the instance of an employee who remains away from the workplace and whose whereabouts are not known and who is out of reach of the employer, it is plainly impracticable to impose upon an employer the obligation to convene a disciplinary enquiry before reaching the conclusion that the fact of desertion has occurred and in consequence of which it is entitled in response thereto to elect to terminate the contract."
> 
> "Whether or not an employer should convene a disciplinary enquiry before taking a decision to dismiss, is dependant on the relevant circumstances and the practicality of so doing."


Final outcome:  The Court found that there was nothing impractical about such a step and in the circumstances the employeeâs dismissal was procedurally unfair. He was awarded compensation. 

On Appeal - the court agreed with the ruling made 


> "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 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."


Thus both the court a quo and the Labour Appeal Court confirmed that terminating a contract of employment due to abscondment/desertion amounts to a dismissal and accordingly, depending on the facts of each case, such dismissal ought to be preceded by an enquiry.

Then in *SACWU vs DYASI 2001 7D LLR 731 (LAC)*.




> If a party to a contract breaches a fundamental term thereof or repudiates it, the other party can elect to hold the party to the contract or to cancel it. [The union] could have transferred the respondent and not terminated the contract â¦ therefore, it was the appellant who terminated the contract. It thus dismissed the respondent and it was obliged to do so both procedurally and substantively fairly."
> 
> On procedure it found that the union could have afforded the dismissed employee an opportunity to state her case. Its failure to do so rendered the dismissal procedurally unfair.


From www.deneysreitz.co.za



> Abscondment / desertion, as stated, is a breach of contract entitling the employer to elect either to enforce the contract or to accept the breach and to cancel the contract. If the employer does the latter, than this election amounts to a dismissal. As in all dismissals, the principle of hearing the other partyâs story ought to ordinarily be adhered to. It may however in certain circumstances be impossible for a hearing to be held where the whereabouts of the employee is unknown and the employer has no way of making contact with such an employee.

----------


## mchlsteyn

My arbitration is HOSPERSA obo Saki vs SANParks on 08/08/08 in Uitenhage.  Your input has been invaluable.  I'm conviced that you have saved someone from an unfair dismissal as my argument seems pretty sound but one can never really be sure untill the day. I'll feed back the outcome. Thanks so much, and for you quick response!

----------


## NIRE

I would like to attach the following article as we all (in the labour industry) waiting for the new guidlines for CCMA Commisioners regarding the "Unfair Procedure" aspect.

In short the Avril Elizabith finding in the Labour Courts placed the spot light on the CCMA in regard to their excessive use of procedure as a reason for finding for Employees as Employers are not required to run a "court case" to dismiss. This makes it easier to fight rediculous excuses and procedural reversals.

BIT OF A READ BUT WORTH IT.

Headline News
Time for business owners to stand ground at CCMA
Adapted from a recent edition of Gauteng Business
The time is right for business owners to put up a fight at the CCMA, now that the Labour Court has come out strongly
against the overly technical approach by the CCMA that has up till now made it very difficult for business owners to
fire someone, says well-known labour law researcher Andrew Levy.
"Important people" are now aware of the fact that the CCMA is being abused by many, including dismissed workers
and "schlenter" labour law consultants, says Levy. But the tide will only turn in favour of employers if they themselves
take a "bold and aggressive" stand and fight to change the system, he says.
Hope for employers was fanned by the recent Avril Elizabeth Home case, which was taken on review to the Labour
Court after the CCMA found in favour of a dismissed worker who had been captured on video ostensibly colluding in
a theft. The Labour Court panned the CCMA commissioner for expecting the employer to conduct a hearing on the
same standards as a criminal court case.
Tito Mboweni, minister of labour when the CCMA was set up, and law professor Halton Cheadle are among the
architects of the system who have also come out in criticism over how the dismissal process has been overproceduralised.
Nerine Kahn, who was appointed last year as the head of the CCMA, says the Avril Elizabeth case "reminded
everybody that we've got caught up in procedural issues".
She said her organisation was "entirely redrafting (its) training" for CCMA commissioners - the more than 600 officials
who preside over arbitration between aggrieved workers and their (usually former) bosses. Cheadle was brought in
recently to help develop new ground rules for the organisation.
Both Levy and Kahn warn that business owners should not expect an overnight change of approach from CCMA
commissioners because a whole industry of technical labour law advisors has to be broken down first. Kahn is
adamant that the situation is not only the commissioners' fault. She also blames labour consultants, in whose interest
it is to make labour law processes as technical as possible. "I personally think that's where the biggest problem is -
the labour consultant says no you've got to have this, you've got to have an investigation, then you've got to have a
disciplinary enquiry, then after a disciplinary enquiry you must have an appeal hearing, and so on and so on. The law
does not say that."
Asked what business owners should do with the detailed disciplinary procedures that they may have got
from a labour law consultant, Levy says: "Tear it up and throw it away and replace it with one sentence: 'we
will manage our discipline in accordance with Schedule 8 of the Labour Relations Act.' Full stop."
Business owners "must stop believing that they need to meet as high a standard of absolute justice in their
(disciplinary) procedure as the High Court of South Africa. When there's a problem with discipline, you don't
have hearings, you have a meeting. You don't read people their rights, you don't have cross-examination,
you don't have prosecutors and defences. You have a disciplinary meeting at which you need to say to the
guy 'this is the nature of the complaint, what have you got to say for yourself?' That's all," says Levy.
And if a business owner gets dragged in front of a CCMA commissioner who is strong on procedure? "Go
along to the commissioner with a copy of the Avril Elizabeth case in your hand. And in your closing
argument you say 'commissioner, you've heard all about procedural fairness. Here is a copy of the Avril
Elizabeth judgment which says you don't have to (be procedurally precise). You must accept this argument,
and if you don't, I want you to deal with this in your judgment," says Levy.
Part of the fight that some business owners will have to undertake to change the system to their advantage is to
appeal to the Labour Court against unfair CCMA awards. The problem is that this can cost between R15 000 and
R20 000. But Levy says part of the calculation that a business owner must make is that such an appeal can stay a
CCMA award, meaning the worker does not have to be reinstated or compensated until the review is completed,
which can take up to three years.
According to the latest Tokiso review of dispute resolution in South Africa, 10% of all CCMA awards are taken to the
Labour Court for review, mostly by employers. Two thirds of the reviews are successful. Tokiso statistics, drawn from
a random sample of CCMA cases that do not involve domestic servants and farm workers, show that 54% of all
CCMA cases last year found in favour of employers, down from 60% the year before. The CCMA's own statistics
show quite the opposite: 59% of cases went to employees, down from 63% the previous year.
The Tokiso research shows "very worrying" signs that employers may be turning their back on the system, says
Tokiso head Tanya Venter. Default awards, where employers don't pitch for hearings, have risen from 10% to 18%,
and an "astronomical" 27% of CCMA awards are not implemented by employers. Venter believes that part of the
problem might be that the CCMA is not efficient in getting notices to employers, but it could also show a lack of
credibility of the CCMA among employers.
The CCMA in Johannesburg has starting holding hearings on Saturdays to make it easier and less costly for ownermanaged
businesses to attend, says Kahn. Up till now, the biggest cost of a CCMA case for business owners has
often been the hours spent out of business in the queue at the CCMA. If the Saturday hearings prove successful, it
will be rolled out countrywide, says Kahn.

----------

Dave A (15-Sep-08), gac (03-Feb-12)

----------


## Dave A

Thanks for this, Nire. As you say, well worth the read.



> Nerine Kahn, who was appointed last year as the head of the CCMA, says the Avril Elizabeth case "reminded everybody that we've got caught up in procedural issues".


I think it's become a national disease across many sectors. We as a nation have become obsessed with procedure even if it means being totally ineffective. In fact, it might even be a deliberate cover-up for being ineffective. "I know I don't have much to show in results, but here is a list of my activities and as you can see, I've been busy."

*Busy* doesn't pay the bills if all you are doing is spinning your wheels.

The great part of being able to pick on procedure for CCMA commissioners is it's the easiest way to force a quick reconciliation or settlement award. With procedure it was either done right or done wrong. Dealing with the actual cause/s that motivated the dismissal in the first place is often less clear cut. 



> Default awards, where employers don't pitch for hearings, have risen from 10% to 18%, and an "astronomical" 27% of CCMA awards are not implemented by employers. Venter believes that part of the problem might be that the CCMA is not efficient in getting notices to employers, but it could also show a lack of credibility of the CCMA among employers.
> 
> The CCMA in Johannesburg has starting holding hearings on Saturdays to make it easier and less costly for ownermanaged businesses to attend, says Kahn. Up till now, the biggest cost of a CCMA case for business owners has
> often been the hours spent out of business in the queue at the CCMA. If the Saturday hearings prove successful, it will be rolled out countrywide, says Kahn.


I recently had a case of an employee taking the company to CCMA for "unprocedural dismissal." The reality was the employee was a casual worker who we ceased employing at all because they had taken up employment elsewhere and was not available three times in a row when we asked that she come in. On the third occasion, we advised her over the phone that we wouldn't be calling for here services again and wished her well.

Blow me down, we get the call-up for a ConArb at the CCMA.

At the conciliation this "employee" wasn't looking for reinstatement - all she wanted was "something." _Something_ turned out to be money - how much? Basically no idea - but as much as she could get would do.

The mediator was getting quite frustrated - the employee's case was obviously groundless but she wasn't leaving without "something." When I suggested we move straight to arbitration and get the heck out of there, I was told the arbitration could only be heard in the afternoon - about 4 hours later.

Once the mediator cottoned on that I couldn't hang around for 4 hours for an arbitration hearing, the squeeze was on. In the end I settled on R500.00 just so we could get the heck out of there. If we could have moved straight into arbitration, the thing would have been over in less time *and* cost me nothing.

Doesn't say much for the "quick, convenient" ConArb process and doesn't do much for the image (credibility) of the CCMA. The employee got her free lunch (probably taken a day's sick leave from her current employer to attend) and will no doubt be encouraging all and sundry...

"It doesn't matter if you have no case. Take it to the CCMA anyway. You'll get _something_."

And so the vicious cycle continues  :Slap:

----------


## NIRE

The CCMA Commisioners actualy have a set of rules that most people don't know about.

This is one of the reasons that I believe Labour or external representation is not allowed in conciliation, they hope that you don't know and then, when they pick up you don't know what law or clause to quote, they feel free to do as they please.

They need to show a high % conciliated cases (cases not escalating to arbitration) this results in doing anything to get both parties to agree to settle.

Most people are not aware that due to the fact that you are allowed representation in arbitration you may refuse to go directly to arbitration and they need to issue a new notice of arbitration with sufficient time for preperation.

But even before this phase if you prepare your case from the start in line with their codes of good practice you can insist on the procedures they need to follow according to their constitution. This makes the whole thing simple as they recognize the fact that you know what you doing and they need to play by the book.

These codes of good practice is available but too bulcky to show here, I can send the via e-mail to those who are interested.

----------

Graeme (28-Apr-09)

----------


## Dave A

NIRE, could you email them to me and I'll see if there is a way to get them up and available as a download for anyone else interested.

----------


## Dave A

A big thank you to Nire for emailing me a rather substantial collection of CCMA info sheets. They really look informative and easy to read.

I've set up a category called CCMA info sheets in the links and downloads manager and will set about adding files over the next few days.

----------


## mervinm

good day guys
nice thread
i need some info
if a employee has not been to work as per the discussion above from you guys
is he supposed to get a salary tho
as we have an issue at work and the employee hasnt been paid his salary cause he has not been to work for the month 
but now he claims to take it to the ccma

any advice will be appreciated

thanx

----------


## Dave A

What reason has the employee given for his absence?

----------


## mervinm

hi
he says he had a drug issue which he did mention to my boss
but he says my boss did nothing to help him
hence he got depressed n started with drugs etc
and now he lost his family

thanx for the replys

----------


## Dave A

> he says he had a drug issue which he did mention to my boss
> but he says my boss did nothing to help him


Which raises an interesting question - is the boss or company *obliged* to help him with his drug problem?

Yes, it is probably good practice, but can the company be held *responsible* for the employee's absenteeism due to the employee's drug problem?

----------


## NIRE

There are two different issues here.

Letâs do the easy one, there is a little law (common law) that states "No work, No pay" thus if the person is not on legitimate leave of any sort then you do not have to pay for work not done.

The tricky part is the drug reasons and the responsibility of the company in this regard. Unless the company has a specific policy and procedure dealing with alcohol and substance abuse this is a very grey aria in the law. 

(get policy in place asap that states clearly that the company will not tolerate any alcohol and/or substance abuse and that sumary dismissal will be the result. this will sort out future issues)

Basically the company must show that a reasonable effort was made to assist the employee. (referral to drug rehab, time off to attend, counselling) the procedures outlined in the code of good practice for dismissal in cases of poor work performance would be the closest to the procedures to follow in this regard.

However this does not make the company responsible for this employee as long as an effort has been made to assist it is still his responsibility to do what is needed to clean up.

My best advice here would not be to take action against the employee for the addiction but rather on his conduct and/or failures related to his work.

Absenteeism - being absent for any periods without permission or a doctorâs note (warnings would be penalty here)

Misconduct - any conduct that is contrary to the law and/or policies and procedures of the company (final warning to dismissal is penalty here dependent on the severity of the incident)

Negligence - any action or failure to act that has potentially or actually caused damage to the company (final warning to dismissal is penalty here dependent on the severity of the incident)

I would give him a disciplinary hearing and dependent on the facts give him a final written warning with a stipulation that he attends a rehab clinic and supply proof of his successful completion within a specified time (reasonable time).

This then leaves it up to him to either clean up his act or move along as failure to ad hear to this and further incidence of similar nature within a 12 month period results in a hearing within which dependent on the facts he will be dismissed.

Hope this helps

----------

Dave A (29-Apr-09)

----------


## insulin

NIRE > Nice!   :Applaud: 

See I myself know that a policy is an important bit of kit. The lack of a policy can easily be exploited. Now I am new in the industry myself and I would like to know if there is a particular way to setup a policy for the workplace. Now I thought the labour law is a good place to start. And the information that was provided here is worth its weight in gold. 

Also if possible and if it exists where can I get a copy of the CCMAâs procedures manual if such a manual? That is if it exists. I am especially interested in the disciplinary procedures.

I think I am not the only one that feels that your contribute are greatly appreciated. 

Thank you.   :Smile:

----------


## NIRE

Thank you so much.

First for all those who don't know your policies and procedures are accepted in CCMA and Court as the "laws" and "Contractual agreed obligations" it takes away the grey and you only left to deal with the black and white. Take the time to put them in place and to maintain them, because they useless until that one moment they save you allot of time and allot of money.

First question how to do a policy and procedure?

The easy way is to split the two words âpolicyâ and âprocedureâ. Start with policy what is it that you want to do, list it as you would like it (forget about everything ells including the law). Then focus on procedure, how you want to do it.

This leaves you with what you want and how you want it. Donât limit yourself with what you think you can and canât do, list it all as though there isnât anything to hold you back.

Now go to the labour relations act, the basic conditions of employment act and the Health and Safety act. Make sure that your Policy and Procedure does not negate or negatively impact on any specifically mentioned rights or obligations.

After this you go to the Codes of Good Practice and make sure that the procedure part of your policies fall in line with these.

Now you will have what you want and how you want it without limiting yourself, but with the assurance that you are legally compliant.

Allot of people do not realize that your policies dictate the law within your business and can contain anything as long as it is based on the inherent nature and requirements of the business. You can and must stipulate everything you want and need. The only consideration is that it cannot contravene a law or negatively impact on basic human rights or rights under the law. 

Second question: Where to find information on CCMA rules and Codes of good Practice especially Disciplinary Procedures?

There is not a specific manual but rather info sheets and Codes.

The CCMA website gives short explanations to specific areas and lists the Codes of good Practice which are the guidelines used to determine cases.

A policy of Disciplinary Procedures is usually compiled from the Labour Relations Act, Basic Conditions of Employment Act and Health and Safety Act as there are a number of gray arias in these acts that require you to choose your preference within their framework.

I always train my clients on these Acts and laws first as this makes it easy to understand what the rules are, once they know these they choose how they would like to run their ship and we compile the procedure.

There are hundreds of Disciplinary Policies and Procedures on the web, the main problem I have with using those is that you miss out on the things you would like (and donât know you can have). Once you know the facts you can get allot more specific to your business.

It is a bit of a process but the knowledge you gain saves you time and money in the long run.

Thanks again :Wink:

----------

Dave A (30-Apr-09)

----------


## insulin

:Clap:   NIRE > Wonderful.  :Clap: 

Your insight is truly commendable. My approach is: keep it simple, ethical and legal.

However the CCMA is a great tool and can be a powerful adversary. Yet I was told that there are other such tools in the form of health and safety inspectors, Industrial inspectors and auditors that can prove both a blessing and a curst depending which side they are on. 

Now interestingly enough there are companies that are unaware of these individuals and the entities they represent. Can you perhaps give us a better insight of who these individuals are? I am especially interested in the so-called âIndustrial inspectorsâ No legend has it that this individual can close a factory... is this at all true?  :Confused:

----------


## NIRE

Hi there

I think the easy way to explain this is that there are four Legal bodies that have powers under the Law to close your business, fine you or make any demands.

One is the Labour Department: This department have divisions that look at all aspects of businesses and make sure that they operate within the legal framework of our country. This Department looks at Labour issues and how employees are paid, treated and the Health and Safety of the working environment. They are allowed to have full inspections but must still operate within their rights by following process when detecting a problem. 

Second on the Labour Side will be the CCMA but interestingly they are limited in their application to Dismissal Disputes, Mediation services, Conciliation services, Arbitration services and can also assist with collective bargaining or agreements. Only if your industry has a Bargaining Counsel do they replace the CCMA and some of the Labour Department functions.

The third body addressing more the environmental and Health and Safety aspects of your business is the Health Department and they would obviously be more of a factor in some sectors than others. The Government Gazette is the best place to review their impact on your specific industry.

The forth body is obviously SARS and they address the financial aspect and legislation.

Any of these bodies may inspect and have the rights within their constitutions and the law to issue penalties as applicable.

Any other person must be contracted by one of these bodies in order to legally inspect and enforce. Should you face persons not of these bodies they would probably be consultants and they would need to be hired by you or have your permission to inspect and then may only give recommendation

You may always use one of the legal bodies and should as they will give great assistance, just keep in mind that they do charge on some services when requested to assist as opposed to an inspection initiated by them.

Thanks

----------

Dave A (05-May-09)

----------


## insulin

@NIRE 

Excellent!  :Clap: 

Thank you for taking the time to inform us and especially thank you for taking the time to answer my questions. I have a better understanding of how the system works and what I need to do to protect myself in the near future. The guidelines and information given here is priceless in its own right and I hope that others will also benefit from these posts.  :Smile:

----------


## Dave A

A side note: These would be the universally applicable bodies. A number of industries have specific authorities with inspection and business-busting powers.

----------


## nomadicjoe

All of the above is very useful and thank you very much - however as you say, each case is different...  I have two problems (December was a tough month)...
We are a small sole proprietor.  One of my employees didn't come to work for two days and when I phoned him he said he was angry with our manager for doping him off late.  I counseled the employee and told him that if he had issues with other members of staff or anything pertaining to his job he was to contact me as the owner and not simply go AWOL.  He agreed and came back to work.  The following Monday he came to work, had an argument with the manager and left site.  I tried to phone him for a week - he ignored my calls.  Unfortunately, as this employee has only been working for us for 2 months, I do not know is family and it is dangerous for me to go through to where he lives as he lives in a township - I also do not have an address for him as, he says, he doesn't have one.  Our company policy clearly states that 3 days AWOL = dismissal if now attempt was made by the employee to contact the office.  After 2 weeks I presumed desertion.  The day before Christmas, 3 weeks later, he phoned DEMANDING his bonus pay out.  I asked him why he took 3 weeks to contact me for his bonus and he said that the manager had fired him.  Firstly - only I am permitted to "fire" someone with a months written notice as is stated in his contract.  Our other staff say that he said "I'm not putting up with this man anymore" and left site.  I advised him that he had not been fired by Jan but that because he left us without notice at the busiest time of year when he had 2 projects on deadline we had presumed he had deserted his job and, that bonuses are not awarded to employees who leave their job in this way.  He then threatened to take me to the police for stealing his money.  Blow me down - he pitched to work when our offices re-opened after the builders holiday and presented me with his incentive sheet which states (by his calculation) that I owe him over R5000 bonus.  Nobody was paid a bonus of that amount (not even me).  Besides which - I advised him again that he deserted his job and I do not have to pay him a bonus as bonuses are awarded on merit.  He has now threatened to take us to the CCMA....  How should I prepare?

The other instance is that my manager was accused by one of my clients for stealing.  We had to suspend him (which I did on full pay) until the investigation could be carried out as he was not allowed onto the estate where we work.  He has made no effort to contact us and when we phone him his phone simply goes to voice mail.  I have e-mailed him and also dropped a letter off at his house.  He has not confirmed receipt of anything and did not appear for his hearing last week.  However I found out today that he is working for someone else?????  How to proceed?

Thank you in advance for your assistance/advice.  I have had such a trying time with staff.

----------


## nomadicjoe

I have an employee who was accused of theft in 3 of our clients homes in a private estate.  Pending an investigation by the police we had to suspend this employee because our clients would not allow him on their property.  He was due to be back at work 3 weeks ago but he never arrived.  We have tried to phone him, he does not take our calls, we have sms'd him and we have now sent a registered letter to his home requesting that he come to a hearing.  He is also still in possession of a tool box full of tools and the spare tyre for one of our vehicles.  He has now failed to arrive at a third set up hearing.  How should I proceed?  Do I need to pay him for the time that he was on suspension if he now seems to have just absconded?  I have also heard via the grapevine that he is already working for someone else...

----------


## Dave A

Sounds like the sooner you formally dismiss him as absconded the better.

As for paying him...
Unless someone here raises a concern to the contrary, in this situation I'd wait until the employee contacted you asking about it.

----------


## nomadicjoe

Thanks Dave - really appreciate the response.

----------


## gac

Excellent thread folks and really informative. Thank you.

----------


## Peter777

Thanks for the above post, I find myself as an employer in the same situation and am looking for the correct procedure to follow.
If the employee's contract states the following _This Agreement of Employment shall commence on 21st July 2010 and will super cede and cancel all previous Agreements between the Employee and the Company and shall terminate on 31st July 2011_
Is it not deemed that (a) the employee doesn't have an valid contract with the company, therefore notice merely needs to be given that due to not reporting for duty the services of the employee have been terminated?

----------


## Dave A

Was the employee employed (and subsequently abscond) after 31st July 2011?

----------


## Peter777

Yes, the employee continued working for the company until Nov'12 at which point she went on unpaid leave to have an operation performed. Her medical practitioner advised that she was fit for duty on the 26th Dec'12, and in a subsequent agreement between the employer and employee it was agreed upon that she would return for duty on the 1st Jan'13.
Despite the fact that she was on a "term" contract the employer retained the employee's services on a "contact" employee basis as the employer was aware of her failing health, and hence the reason of never issuing an "permanent" employee contract.
No notice has been given to management, but the employee has indicated to other employee's that she doesn't intend returning to work.
Our concern as an employer is the same as other cases, if we deem her to have absconded after the 14th Jan will we be liable for compensation should the employee approach CCMA considering that no formal notification has been given to the employer of termination by the employee.
Please take into consideration the fact of her contract having "expired".

----------


## Dave A

> Please take into consideration the fact of her contract having "expired".


That's exactly what I am taking into consideration. The continued employment up until November 2012 in the absence of a valid fixed term employment contract would mean the employee has a strong case to argue for permanent employment status by now. The expired contract will have no bearing on the current conditions of employment unless there are clauses providing for its extension in whole or in part.

I recommend you proceed as if dealing with a permanent employee situation and this is too early to presume the employee has absconded. The first step now would be to make every effort to make contact to clarify why the employee has not returned to work.

----------

Peter777 (04-Jan-13)

----------


## Peter777

Thank you Dave,

Much appreciated for your input on this situation.
Its as I suspected, that by terms of the labour law and subsequently the stance CCMA would take that the employee is deemed to be an permanent employee, unlike the stance that the banks would take and deem the employee to be a "contract" worker according to only having an "term" contract and would therefore by banking law not qualify for a HP loan.

Why would two different laws be created governing one situation??
i.e the status of an employee {are they contract employees or permanent employees} :-)
No need to answer that one.

----------


## Dave A

When it comes to categorising their clients, banks are a law unto themselves  :Wink:

----------

