We have received a number of questions about pressing labour law matters in individuals’ businesses. As these are issues that many employers and employees face, we have put them into an article.

My employee has not turned up for work for five days. I have not had contact from this employee. I have heard from other employees that this individual was in hospital for a couple of days but that is no longer the case. I have tried calling but the phone goes unanswered. How long do I have to wait before I can assume they will no longer be returning? What if they come back? Under what conditions do I have to take them back into my employ?

The first point of departure in labour law is to determine what your company’s rules/procedures say regarding absence for long periods, whether a process has been defined and the number of days stipulated for what is considered a “long absence”.

The fact that the employee has not been at work for a period of five days could be deemed – according to labour law – to be desertion. ‘Desertion’ refers to a situation where an employee has been absent for three or more days without informing the employer. This employee must have no intention to return to work.

With desertion, the intention not to return is important. Therefore, to be able to prove desertion you – as the employer – must be able to show that reasonable attempts have been to contact the employee:

• You must be able prove that you have attempted to contact the employee by telephone or telegram sent to his last known address.

• After a reasonable period of time has elapsed, and you have not been successful in making contact, you are entitled to remove the employee from the system.

• You must follow disciplinary procedures (in absentia if necessary) before dismissing the employee and removing him from payroll. The notice can be sent to the employee’s last known address.

Where an employee who has not been to work because of illness, or has had to stay in hospital, the employee has a valid reason – in terms of labour law – for not being at work. Therefore, they would have a valid defence against a case for desertion. You would therefore need to make the attempts to contact the employee, as mentioned above, if there is reason to believe the employee is in hospital. In addition, you would need to reasonably investigate this case before proceeding.

You, the employer, will still be able to take disciplinary action for failing to notify the employer of his inability to report for duty even if he has a valid reason for non-attendance. There are exceptions to this where an employee was in hospital – such as in this case – and /or did not have
access to a telephone as he was too ill. However, those are the exceptions to be used by the employee in mitigation of the sanction in a disciplinary enquiry.

Contact Global Business Solutions

If you have a labour law question, such as the one above, please don’t hesitate to contact our joint CEO – labour law analyst, Jonathan Goldberg – or any other of our legal experts, by following this link.