Skip to main content

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.

_____________________________________

  • 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.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?