- Nepotism in Perspective
- Absentieesm Management: Putting the Wagon behind the Horse
- Non disclosure at Job Interviews
- Double Jeopardy
- Probation in a nutshell
- Resination: A Unilateral Act
- Land Reform for farmers
- The Marikana experience
- The self-supervising employee
- Constructive dismissal
- The New Revolution in Labour
- Under the influence
- Equal Pay
- Non Disclosure

Absentieesm Management: Putting the Wagon behind the Horse

One of the biggest challenges that employers probably face, are to ensure that they have continuous presence of the whole of their workforce on any day. Absence from work disrupts the efficiency of production and impacts negatively on the cost of production. Employees often are of the view that they are entitled to be absent from work . This attitude typically stems from the fact that the rules with regards to absence from work are not consistently applied, because the employer itself does not have a proper understanding of the principles involved. Principle 1: Absence from work is either authorized or unauthorized. An employer agrees with an employee to put his/her productive capacity at the employer’s disposal for a specific period of time during the working day. The employer is entitled to expect the employee to keep to this agreement. Principle 2: Unauthorized absenteeism normally relates to late coming, desertion and abscondment. Absenteeism relates to short term absences from the workplace. Abscondment occurs when an employee is absent for a significant period of time under circumstances that makes the employer to deduce that the employee does not intend to return to work. Desertion occurs where an employee intimates in some are other way to the employer that he/she does not intend to return to work. In the first mentioned instance the employer deduces the employee’s intention from the facts e.g. the employee has left for another province and no one knows why he left or where he finds himself . In the last mentioned instance it is clear from the employee’s conduct that he/she does not intend to return e.g. the employee has started working for another employer. Principle 3: Authorized absence means that the employee either obtained permission to be absent, or, had a valid reason for not being at work. Normally leave of absence is obtained by applying to the employer in advance e.g. yearly vacation leave , occasional vacation leave and maternity leave. Other authorized absence normally occurs after the fact e.g. illness or injury and family responsibility leave. An employee will apply for the leave upon return to work and should be required to provide the necessary proof of the reason for his/her absence. In the last mentioned instance one would say that the employee had a valid reason for not being at work because he/she could not apply to be absent in advance. Principle 4: Distinguish desertion and absconding from resignation: Resignation is the voluntary termination of the employment relationship at the instance of the employee. In Mafika v SA Broadcasting Corporation Ltd (2010) 19 LC 7.1.1 the Labour Court stated the following: A resignation is a unilateral termination of a contract of employment by the employee. The Courts have held that the employee must evince a clear and unambiguous intention not to go on with the contract of employment, by words or conduct that would lead a reasonable person to believe that the employee harbored such an intention (see Council for Scientific & Industrial Research (CSIR) v Fijen (1996) 17 ILJ 18 (AD) [also reported at [1996 6 BLLR 685 (AD) – Ed], and Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC)). Notice of termination of employment given by an employee is a final unilateral act which once given cannot be withdrawn without the employer’s consent (see Rustenburg Town Council v Minister of Labour & others 1942 TPD 220; Potgietersrus Hospital Board v Simons 1943 TPD 269, Du Toit v Sasko (Pty) Ltd (1999) 20 ILJ 1253 (LC) and African National Congress v Municipal Manager, George & others (550/08) [2009] ZASCA 139 (17 November 2009) at para [11] [also reported at [2009] JOL 24612 (SCA) – Ed]. In other words, it is not necessary for the employer to accept any resignation that is tendered by an employee or to concur in it, nor is the employer party entitled to refuse to accept a resignation or decline to act on it. (See Rosebank Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation (Pty) Ltd 1969 (1) SA 300 (T) [also reported at [1969] 1 All SA 132 (T) – Ed]). If a resignation is to be valid only once it is accepted by an employer, the latter would in effect be entitled, by a simple stratagem of refusing to accept a tendered resignation, to require an employee to remain in employment against his or her will. This cannot be – it would reduce the employment relationship to a form of indentured labour. This is not to say that a resignation need not be communicated to the employer party to be effective – indeed, it must, at least in the absence of a contrary stipulation (African National Congress v Municipal Manager, George & others, supra). A resignation is established by a subjective intention to terminate the employment relationship, and words or conduct by the employee that objectively viewed clearly and unambiguously evince that intention. The Courts generally look for unambiguous, unequivocal words that amount to a resignation – see, for example, Fijen v Council for Scientific & Industrial Research, supra, where the Labour Appeal Court stated that to resign, the employee had to “act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfill his part of the contract.” The requirement of a clear and unambiguous intention to terminate the contract may often be more easily stated than applied. As Mark Freedland observes, if a worker utters words seeming to indicate an intention to leave employment, the utterance may be unclear, the product of uncertainty, or a manifestation of anger rather than an expression of a definite intention to terminate the employment relationship. When it is claimed that an employee has decided to terminate his or her employment of his or her own volition, it may be necessary to scrutinize the genuineness of that volition to determine, for example, whether the employee’s action is the result of an unacceptable degree of pressure by the employer, or whether the employer has been over-eager to treat an impulsive decision as a settled one. Principle 5: Ensure that the correct procedures are followed: When an employee has deserted his/her employment it amounts to a repudiation(breach) of the contract of employment. The employer has the option to accept the repudiation. In doing so the employer is terminating the contract of employment which amounts to a dismissal. The employee should therefore be afforded an opportunity to state a case in response even if only to discharge the requirements of procedural fairness . (The employee may not have a case on the merits but this will not discharge the employer from proving at the CCMA that a fair procedure was followed). It often happens that the employee “disappears”. In such cases the employment relationship may be terminated in the absence of the employee. The right to state a case should however remain should the employee return to work later. Written by D.A SWANEPOEL 24 November 2014

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