When employees take permanent vacations: how to address absenteeism after annual leave

The silly season has arrived and employees are counting the days until their holidays. Unfortunately, December and January can be extremely challenging from a human resources perspective.

Often, employees fail to return to work on the day they are due back. In terms of the common law, an employee has a duty to enter into and remain in service, other than during authorised periods of leave.

If an employee is unable to return to work after a period of annual leave, the employee can reasonably be required to inform the employer of his/her whereabouts and the reason for the absence from work. However, this requirement is often not fulfilled and the employer is required to investigate the employee’s absence from work.

Failure to return to work following annual leave does not necessarily warrant dismissal. The reason for the absence should be established before determining what action to take.

 

Our law draws a distinction between absenteeism, abscondment and desertion. Absenteeism is a short period of unauthorised absence, abscondment is unauthorised absence from work for an unreasonably long period, and desertion entails a clear intention of not returning to work at all.

The intention not to return must be apparent from the employee’s actions, such as moving to another town or province, or taking up employment with another employer.

In instances of absenteeism and abscondment, employees must be given a hearing before being dismissed, unless there are exceptional circumstances.

Employees should be notified of the disciplinary hearing and cautioned that it will continue in their absence if they elect not to attend.

In a case of desertion, it is advisable, at minimum, for the employer to address a letter to the employee’s last known address expressing the employer’s view that the employee has deserted and employment will be terminated on a specified date should the employee fail to return to work or to contact the employer by a stipulated deadline.

In every instance of an employee failing to return to work following annual leave, the employer should investigate the matter before taking any action, as this will determine what process is to followed by the employer.

• Lumb and Bezuidenhout are with Cliffe Dekker Hofmeyr