Article by Lavery Modise and Shaa'ista Bulbulia

The Labour Court has recognised that the employee's general duty is to render a service to the employer, and that failure to discharge that duty could potentially lead to disciplinary action.

If an employee is absent for several days from work without communicating his or her absence to the employer, the assumption is often made by the employer that the employee has absconded.

Employees will be deemed to have deserted only when evidence proves that the employee had a clear and unequivocal intention to abandon employment.

The employer has the onus of proving that the employee had such intention. The Labour Court has previously decided that an act of desertion constitutes a breach or repudiation of the contract of employment. What happens in a situation where an employee, who has been absent from work for several days, has every intention of returning to work?

In a case that came before the Commission for Conciliation, Mediation and Arbitration (CCMA) in 2009, an employee was dismissed after being absent from work for six days.

The employee claimed that he had asked his wife to call his manager and inform the manager that he would be away from work.

The company claimed that the employee was not dismissed, but that his employment contract was terminated automatically in terms of its disciplinary code, which deemed an employee to have deserted or absconded if he or she was absent from work for longer than three days.

The commissioner held that, despite the provisions of the disciplinary code, absence from work for longer than three days did not necessarily mean that an employee had absconded. To prove abscondment, the employer must prove that the employee had the intention of not resuming work.

The employer failed to prove that the employee's wife did not telephone his manager, regarding his absence from work and the commissioner found that the employee had been dismissed and rejected the employer's argument that the contract was terminated automatically. In another case that came before the CCMA, an employee requested one month's unpaid leave after believing that her ancestors had called her to be a sangoma.

The employee had submitted a certificate from her traditional healer verifying that she suffered from "perminitions of ancestors".

The employer failed to authorise such leave, and instead offered her one week's unpaid leave.

The employee rejected the offer and absented herself for the entire period.

The employee was charged with various counts of misconduct, including being absent without a valid reason for more than three days. The employee was dismissed following a disciplinary hearing; she then lodged a dispute with the CCMA.

In deciding the matter, the commissioner considered that the employee had informed her employer of her whereabouts and had supporting documentation from her traditional healer.

The commissioner accordingly found that she had acted reasonably given the fact that the employee was under the impression that her life was in danger.

The employer challenged the CCMA's decision by bringing an application to the Labour Court to have the commissioner's decision set aside. When the matter came before the Labour Court, the employer argued that the commissioner made findings not supported by law and rendered an award that was not justifiable. The Labour Court held that this case turned on a clash of cultures in the workplace.

The employer did not regard a calling to be a sangoma an illness, and the employee believed that if she did not heed to the calling to become a sangoma she would become ill.

The court recognised that the primary question was whether the employee was justifiably absent from work for more than three days. In assessing the fairness of dismissal for absenteeism, many factors were taken into consideration, including if the employee has tendered a reasonable explanation for the absence. In this case the Labour Court found that the employee had given a reasonable explanation and therefore the employee should not have been dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.