Please note that this pertains to South African Labour Relations and Best Practice requirements.
Last time we had a look at an example of desertion where the employee just did not ever come back to work. This time let’s look at a different example.
So bring in the protagonists – Mike owns a chain of retail stores in various busy malls across the country. George is one of his managers. Let’s use the busy Christmas time type scene again. It’s a Thursday afternoon and George is counting the hours until the weekend as he is taking his monthly weekend off and plans to go home to visit his mother who is in a small town about 200kms from where he lives. George’s mother is not very well and he is looking forward to spending some quality time with her.
The phone rings and it is George’s mother’s neighbour Annabel, who is calling to tell George that his mother has taken a turn for the worst and he must come home immediately. Mike happens to be in the store when the call comes in and he tells George to leave immediately and take the Friday off as well and that this extra day together with the weekend will give George sufficient time to sort something out for his mother and make whatever arrangements need to be made for her well being.
George gets to his mother and she insists that she wants to see the traditional healer from her home town which is more than 1000kms away. George takes her.
Herein lies the problem. You see Mike is expecting George to return to work on Monday and George does not return and also does not phone in to explain what he is doing. In fact George does not return to work for another two weeks and during this whole period he does not contact Mike or any other colleagues. After George not being at work for 5 days and in compliance with the Basic Conditions of employment Act and the Labour Relations Act, Mike follows the correct procedure. Mike tries to phone all the contact numbers that he has on record for George. Mike sends a telegram to George’s place of residence and even drives there to see if he can get hold of George. To all intents and purposes, George has disappeared.
Eventually Mike holds the disciplinary in abstentia, George is found guilty of desertion and he is dismissed.
When George eventually does return to work, he is informed that he has been dismissed and that there is another person employed in his position.
Now here is the question – under these circumstanced did George desert and abandon his employment or was it just a case of his being AWOL. The question that the CCMA has to look at also is whether the reason for George’s dismissal was a fair one.
Well the argument goes along the lines of, when George did not return on the Monday after his weekend off, surely Mike must have considered the possibility that George was not able to sort his mother out and that is why he had been delayed in returning.
Mike on the other hand, did also not have anyone to fill George’s position and it was also the busiest time of the retail year. George did not contact Mike during the entire period that he was away and he also did not respond to any messages that were left on his cell phone. George’s response to why he did not contact Mike was that he was concerned for his mother and did not think to phone as Mike knew that his mother was ill.
Now here’s the thing – in order to find an employee ‘guilty of desertion’ there must be a very strong indication that that employee has no intention of returning to work. Clearly this is not the case here and the result of this is that Mike lost his case.
Desertion is defined as “desertion is distinguishable from absence without leave in that the employee who deserts his or her post does so with the intention of not returning, or having left his or her post, subsequently formulates the intention not to return. On the other hand, the AWOL employee is absent with the intention of resuming his or her employment.”
Next time we will have a look at a typical case of being AWOL (Absent without leave).