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
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
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
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
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
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
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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