Desertion or Absence? Using the 2025 Code to Get Desertion Dismissals Right

Employers are increasingly facing cases where employees simply stop coming to work, leaving operations exposed and managers unsure whether they are dealing with absenteeism, abscondment or true desertion. Recent Labour Court and Labour Appeal Court decisions, read with the 2025 Code of Good Practice on Dismissal (effective September 2025), give very useful guidance on how to approach these cases fairly and defensibly.

Several key principles emerge from the case law. Desertion is not just being away from work – it is unauthorised absence coupled with an intention not to return. Courts have repeatedly stressed that the employer carries the onus to show facts from which that intention can reasonably be inferred. Long, unexplained silence; ignored calls and messages; failure to respond to written notices; and abandonment of pay and benefits can all support an inference of desertion. By contrast, a plausible explanation (illness, incarceration, family emergency) may mean you are dealing with serious absenteeism rather than abandonment of employment.

In a recent Labour Court matter involving prolonged absence of around 16 months under a clear desertion policy, the Court affirmed that desertion is a form of misconduct where a known rule is breached. It rejected the idea that employers carry an open‑ended “humanitarian duty” to search for missing employees. What matters is that the employer has a clear, written rule, has communicated it, and has made reasonable efforts to contact the employee before relying on desertion.

Reasonable tracing efforts are practical, not heroic. At minimum, employers should try the employee’s last‑known cell number and email, send messages (SMS/WhatsApp), make enquiries via supervisors or colleagues, and contact the next of kin or emergency contact listed on the personnel file. A written letter or email to the last‑known address, setting out the absence, referring to the rule and inviting the employee to return or explain by a specific date, is crucial. Just as important is keeping a simple record of every attempt – dates, times, numbers dialled, messages sent and any feedback received. This “desertion file” often becomes decisive evidence at the CCMA or in court.

The 2025 Code of Good Practice on Dismissal shifts the focus from rigid formalities to substance and proportionality. For desertion, a fair process can usually be followed in seven clear steps:

1. Confirm that there is a clear, communicated rule on attendance and desertion.

2. Verify the absence and make reasonable tracing attempts, keeping a record.

3. Send a written show‑cause or recall notice, warning of possible dismissal.

4. If the employee responds or returns, give them a fair opportunity to explain (informal meeting, phone call or written response).

5. Consider the explanation, length of absence, service record and operational impact, and decide whether true desertion is proved.

6. Record the decision and reasons, including why dismissal (rather than a lesser measure) is appropriate.

7. Communicate the outcome in writing to the employee or to their last‑known address, explaining the decision and their right to challenge it.

The Code confirms that a formal courtroom‑style hearing is not mandatory in desertion matters. What is required is a reasonable investigation, a clear opportunity for the employee (if reachable) to respond, and a reasoned, proportionate outcome. When employers combine a clear desertion policy, sensible tracing efforts, and a documented, fair process, they stand a far better chance of having desertion dismissals upheld – and of maintaining operational continuity without sacrificing fairness.

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This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.

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