During the height of the 2020 Covid-19 pandemic, the employer, Concrete Lining Products, decided to close down operations from 25 March to 16 April 2020 whilst continuing to pay its employees in full for that period, with the amount paid to be offset against the employees’ annual leave for days not worked.  

The applicant, a Mozambican national, returned to Mozambique over this period and only returned to work in October 2020.  He was subjected to a disciplinary hearing and dismissed for being “absent from work without permission – abscondment from June 2020 to 24 October 2020”.  The Commission for Conciliation, Mediation and Arbitration (CCMA) upheld the dismissal based on the ground that the employee had himself to blame by leaving the country and disregarding the employer’s instruction not to leave the country.

An employee is regarded as having absconded from work when they have absented themselves from work without their employer’s prior permission and if the employee had the intention of not returning to work.  The applicant stated that the employer had failed to prove that the applicant had the intention of not returning to work and therefore failed to prove that the applicant was guilty of absconding from work. 

The Court accepted the applicant’s submission that the employer failed to prove that the applicant had no intention of returning to work.  The employer failed to attempt to contact the applicant on the Mozambican phone number that was on record in the applicant’s file.  The employer failed to assist the applicant with his return to South Africa as requested by the applicant after the border was opened and the applicant had informed management that he had taken the required Covid-19 test at the border.  The employer was therefore privy to the applicant’s intention to return to work, despite the employer not providing the applicant with any assistance. 

The presumption that an employee has absconded from work is not taken lightly.  The onus is on an employer to enquire and determine the whereabouts of the employee and to instruct the employee to return to work before termination of employment may be considered.  Employers should not act hastily in terminating employment relationships and must provide the employee with an opportunity to be heard.  Not providing an employee with an opportunity to be heard can lead to the dismissal being referred to the CCMA or relevant bargaining council, where an employer will be required to provide proof that the employee has indeed absconded, as well as the efforts to show the employer has made to locate the employee and instruct the employee to return to work. 

The employee’s evidence before the Commissioner proved that while the applicant was absent, he had the intention of returning to work when the boarder opened. Furthermore, once having found that the employee had absconded, the commissioner had failed to consider whether dismissal was the appropriate sanction given the circumstances.

The employer was thus ordered to pay the applicant 12 months’ compensation as well as the applicant’s legal costs.

Association of Mineworkers and Construction Union obo Judas v Commission for Conciliation, Mediation and Arbitration and others – (2024) 33 LC 1.11.6 also reported at [2024] 2 BLLR 138 (LC)

This blog was co-authored by Sarah-Lee Seekoei, Candidate Attorney.