Labour Law in South Africa
Public Sector Employees Absconding
Abscondment or desertion refers to cases where an employee stays away from work for a longer period, with the clear intention of not returning to employment.
SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) it was held that it is only desertion if the employee does not intend to return to work. The onus to establish this intention rests on the employer.
There is a distinction between public sector and private sector employees. Section 17(5)(a) of the Public Service Act addresses public sector employees and states that:
‘an employee who absents himself or herself without permission of his or her head of department, office or institution for a period exceeding one
calendar month, shall be deemed to have been discharged from the
public service on account of misconduct with effect from the date
immediately succeeding his or her last day of attendance at his or her
place of duty.’
Therefore with regards to public employees the termination does not constitute a dismissal as the employment is not terminated by the employer but rather the employee’s absence from work. Jammin Retail (Pty) Ltd v Mokwane and Others (2010) 31 ILJ 1420 (LC), the Labour Court addressed the distinction between employees in the public sector and the private sector.
In Hospersa & Another v MEC for Health (2003) 24 ILJ 2320 (LC) the Court held that as the employees are discharged, it is deemed to be on account of misconduct. They are not protected by the rights of unfair dismissal laws. However section 17(5)(b)states that if the employee later reports for work the relevant authority may reinstate the employee if good cause is shown for
the employees absence. The onus falls on the employee to provide a reasonable explanation.
Tarryn Tennant
MALCOLM LYONS & BRIVIK INC
Specialist Attorneys in Personal Injury and Labour Law