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Article 32/2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

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  • The labour court, in Glencore (Pty) Ltd v CCMA (2018) 29 SALLR 30 (LC); (2018) 39 ILJ 2536 (LC), had the opportunity to deal with the misconduct of deeming desertion and did so by, firstly, identifying such misconduct in the specific disciplinary code and procedure of the employer, secondly, by identifying the elements of such misconduct and, thirdly, by identifying the opportunity that the employee has to show good cause.

Applicable disciplinary code and procedure

  • For this misconduct to exist, it must be created in an instrument applicable at the workplace, such as a disciplinary code and procedure.
  • It, in essence, consists of the following:
    • the unauthorised absence without notification of the whereabouts of the employee
    • for a period longer than the permissible period identified in the instrument (e g six working days or shifts)
    • what must be provided in this self-created misconduct are the consequence that, if the employee is absent without authorisation and without notification of his whereabouts for longer than the permissible period, he/she shall be deemed to have deserted
    • such deeming desertion attracts the sanction of dismissal, but subject to a self-created appeal

Elements of the misconduct

  • With reference to what is stated aforesaid, the following elements of the misconduct can be identified:
    • guilt exists on the basis that the employee has breached the aforesaid requirements
    • the sanction of dismissal is not final
    • the opportunity to show good cause exists
  • It is not a requirement that the employer must prove that the employee had the intention to desert.
  • On good cause shown, the non-final dismissal may or may not be confirmed, taking into account the totality of the factors, e g:
    • whether the absence is wilful
    • the reasons why the employer imposed a dismissal
    • the basis of the employee’s challenge
    • the harm caused by the employee’s conduct
    • the effect of dismissal on the employee
    • the employee’s record

Concluding remarks

  • The non-final dismissal will thus not become final if, on the totality of the factors concerned, the employee provided a reasonable and satisfactory explanation for non-compliance with the permissible period.
  • It is irrelevant as to whether or not the employer attempts to communicate with the employee as to why he/she had been absent without authority and without notification for longer than the permissible period.
August 31, 2026

What is the difference between desertion and abscondment?

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?