Please note that this applies to South African Labour and Best Practice requirements.
So here we are back with the dilemma that Mike finds himself in. A staff member who is AWOL, who cannot be contacted – too much work for one person, and the possibility of falling foul of the law if he just dismisses said employee and hires another one! Mike is pretty much between a rock and a hard place.
So here is what not to do:
• Don’t immediately take the employer off the books and record that they have dismissed themselves.
• Don’t immediately hold a disciplinary hearing in the employee’s absence and then fire them.
If George has not formally and clearly resigned, Mike cannot just assume that he has resigned. If there is no letter from George stating that he has resigned – well he hasn’t and if George hasn’t said “I hereby tender my resignation” (or words to that effect), packed up his worldly possessions and left, never to return again – then he hasn’t resigned. George has done neither, therefore he has not resigned and he is still legally employed by Mike.
What Mike needs to do now, is to send a telegram (and yes they do still send out telegrams from the Post Office) to George’s home address saying something like – “you have been absent without leave for the last 5 days, you have not contacted the office to advise the reason for your absence and I have been unable to contact you at all. This is a formal request for you to contact me on 083 702 8849 or 011 672 3456 or email@example.com by 20th August 2020. If by that date, I have not heard from you, I will have no option but to hold a disciplinary in absentia, for being Absent without Leave and if you are found guilty, you may be summarily dismissed.”
Mike of course, needs to give George a ‘reasonable’ amount of time to respond to the telegram, 3 working days is more than reasonable for the telegram to be delivered and for George to contact the office to explain his absence.
If George does respond, depending on the reason for his absence, a disciplinary should be held.
If George does not respond by the stipulated date, a disciplinary must be held and Mike is well within his rights to dismiss George at this time.
It must be noted however, that a full ‘audit/document trail’ must be kept. Should George crawl out of the woodwork at some point and decide to take Mike to the CCMA for unfair dismissal (or anything else that he might come up with), if Mike has a clear record of when he tried to contact George (telephone records are good), a copy of the telegram and the disciplinary records and don’t forget the attendance register to evidence that George did not come to work, and that Mike explored every opportunity to make contact with George – chances are that it will be thrown out of court.
It is always a good idea however, to get hold of a Labour Attorney to discuss the facts of the case and to make sure that steps that are taken are within the requirements of the law. It is also a good idea, if you need to go to a CCMA hearing, to get the sound legal opinion of a good Labour Attorney to assist you.