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ABSENCE WITHOUT LEAVE / PERMISSION

Duty to render service:

The very basis of the employment contract is that the employee has to:


  • Come to work, and

  • Be on time in order to perform the duties which they have been hired to do, and they must remain at the workstation for the contracted number of hours per day in order to perform the requisite duties unless they have an adequate reason to be absent.

If the employee does not do that, they cannot fulfill their contractual obligation and is therefore in breach of contract.


Common Law:

Under the common law, an employee is required to render service during agreed hours of work. Wilful absence constitutes a breach of contract and may justify summary termination of the contract.


The obligation of the employee that exist even if they are not specifically stated in the contract of employment are as follows:


The employee must –

  • Provide the employer with their labour (to be at work).

  • Obey reasonable and lawful instructions.

  • Act in good faith (to protect their employer’s interests).

  • Not misconduct themselves (to behave properly according to the accepted norms of society).

  • Perform their duties (work in a satisfactory manner).

For the purpose of the current subject, the most important is the first common law rule – to provide the employer with their labour. To do this, the employee must not only come to work – they must come to work on time and be at the workstation during the agreed hours – even if the employer has no work for the employee to do.


If the employee does not do these things, they may well be in breach of their common law conditions of employment contract and is potentially at risk of termination of employment.


There is a further legal concept that bears mention and that is the principle of unjust enrichment. What this means is that nobody may be enriched at the expense of another. The contract of employment provides (perhaps not in as many words, but certainly by implication) that the employee shall offer their services and that the employer shall pay them for such services. If the employee does not provide those services (because of absenteeism) then it is unfair for the employer to have to pay for something that is their contractual right to receive. It is equally unfair for the employee to benefit by means of being paid for something that they did not do in terms of the employment contract.


Simply put - no work – no pay


Modern law:

Under the common law and statute, an employee who does not tender service is not entitled to receive wages, irrespective of the reason for such non-tender. This can take on many forms – ranging from desertion to absenteeism to unpunctuality. A distinction is drawn between absenteeism, abscondment, and desertion.


Absenteeism:

Arriving late, leaving early, extended tea or lunch breaks, attending to private business during working hours, feigned illness, extended toilet breaks, undue length of time in fetching or carrying tools and or products, and other unexplained absences from the workstation or from the premises.


Absence where the employee does not turn up for work at all can sometimes be the most difficult type of absenteeism to handle. There can be a host of reasons for this, and you will have to sift out the truth from the fiction before taking action.


The employee must justify the absence. This, and the type of absence, may be due to personal problems: sick spouse, kids, urgent financial crisis, death in the family or death of a close relative, or some other domestic crisis that requires the employee to stay at home to handle it. Under such circumstances, the employee should notify the employer by telephone, or any other communication medium as accepted and outlined in the company policies and procedures, or through messenger of a fellow colleague, friend, or family member. It is very seldom that there are no means whatsoever of notifying the employer of the absence. The usual excuse (unacceptable) is that “there was no telephone, airtime, or data.” This is nonsense and must be rejected outright.


However, should the employee fail to notify the employer of the reason for the absence within a reasonable time, the failure to do so only renders the absence more serious.


If the employee is absent for more than 3 (three) days (in some instances 5 days, depending on the employer’s policy) they may well find that they have been dismissed for desertion. Note also that even if the employee does notify the employer that they will be absent for the day, such notification does not mean that the absence is now authorized. The employer may decide to treat the absence as authorized and pay the employee for the period absent or decide to authorize it but treat is as unpaid leave. It will depend on the circumstances.


Whatever happens, the event must be recorded in the employee’s file, the employer must have a short session with the employee (again recorded), and must follow the disciplinary procedures, if any.


If the reason advanced for the absenteeism is unacceptable to you as the employer, then issue a written warning – again, the type and duration of the warning may differ from employer to employer. Record keeping is vital in the event that the employee becomes a habitual absentee, and you need to dismiss at some future stage.


The absence could also be due to some uncontrollable event. Rains flooded their house, or even the whole village, a tornado or cyclone (not uncommon these days in certain parts of South Africa), roads washed away, telephones out of order, taxi strike, etc.


However, with such events, you will almost certainly know about them because they will be reported on the radio, television, or social media, so the reason for the absence is obviously valid and acceptable.


Despite this, you still are not obligated to pay the employee – you as the employer must decide on that.


Remember the principle of no work no pay and also “how you get to work is your problem” still apply. But in all cases, an employer must be reasonable and fair. For example, there may be other employees who live in the same stricken area, but who did come to work. Even though they may have arrived late, you would take a more unsympathetic view of their plight.


You would also view the circumstance of any who stayed away altogether, especially in view of the fact that some employees living in the same area made an effort and did come to work.


Abscondment:

When an employee is absent from work for a period that warrants the inference that the employee does not intend to return to work. The employee has the right to present their case if the employer’s inference that the employee does not intend to return to work, turns out to be incorrect.


Desertion:

This is the case when an employee has indicated that they do not intend to return to the workplace. The employee has the right to be heard if the assumption that the employee intended not to return, turns out to be incorrect.


The elements of the offense of absenteeism are that the employee must have been absent from work at a time when the employee was contractually obligated to render service and that they had no excuse for their absence. The onus rests on the employee to explain their absence – like all offenses, absenteeism requires fault on the part of the employee. If the employee was ill, in a coma, in an accident, in jail, did not have transport, etc., they cannot be said to be at fault.


The Labour Court holds that desertion by an employee is a breach of contract that requires acceptance by the employer and that it accordingly constitutes a dismissal.


Failure to inform the employer of the reasons for absence:

Some employers also add a further element to the offense of absence: employees must inform the employer immediately of the reason for their absence. If they don’t, they may be charged for their failure to inform in addition to the charge of absence. Again, an explanation for an employee’s failure to inform the employer will be adequate if the employee can prove that the failure was beyond their control.


An employee, who does not have a valid excuse for their absence, is guilty of absenteeism even if they notify the employer of their absence. And an employee who has a valid excuse for their absence may be found guilty on a charge of absenteeism if they failed to notify the employer timeously of the reasons for their absence.


Absence from overtime work:

It happens that an employee does not pitch up to work previously agreed overtime. The employee states that because it is overtime it is therefore voluntary and they do not have to work it if they do not wish to, despite having previously agreed to work the overtime.


This is incorrect. Where an employee has specifically agreed to work a specific shift of overtime, then the employee is contractually bound to work that agreed overtime. Once the employee has agreed to work the overtime, it is then no longer voluntary but becomes a contractual obligation. Disciplinary action is the same as for absence without permission or authorized absenteeism.


Involuntary absence:

Like all offenses, absenteeism requires fault on the part of the perpetrator. Therefore, an employee who is absent because they are in a coma or in jail, cannot be at fault.


Absenteeism – at what cost?

Very few employers actually count the cost of absenteeism in terms of cash. There are many cost factors hidden in absenteeism that one cannot quantify in rands and cents – such as the cost of lost production – the employer only knows that “the work is behind.”


And then there is the cost of the disgruntled employees who are picking up the workload because other employees are absent – and because these employees are upset and annoyed, they also work slower, and their output suffers.


Uncontrolled absenteeism:

If an employer does not control the absenteeism of their staff, they are going to lose thousands of rands. You must look for the causes of the absenteeism, and those sections or departments of the company, in which it occurs.


You may well find that absenteeism is far more frequent in certain departments than in others.


This might lead you to investigate what is wrong with the management of those departments where high rates of absenteeism are experienced.


Sometimes the employer can also be to blame for high rates of absenteeism – for example, unsupportive management, jobs where there are no prospects of promotion or career development, other poor working conditions, lack of commonly provided benefits such as pensions or medical aid, performance bonuses, and so on.


Warning signs:

There are warning signs that an employer can look for which will make them aware that absenteeism is about to hit the headline.


Watch out for employees who suddenly start “sticking rigidly to working contractual hours” whereas in the past they were only too willing to put in the extra overtime to keep the job up to date.


Other warning signs would be things like attitude deterioration, development of things like aggressiveness, and sometimes a clear indication of reluctance to do the job.


Watch out also for declining health in your employees and increases in the frequency of sick leave.


Record-keeping and reviews:

It goes without saying that an employer must keep very careful and accurate records of absence without leave, sick leave without a medical certificate, and sick leave with a medical certificate.


If no records are kept, you will not be able to identify patterns or abuse.


The type of absenteeism you will record will be:

  • All absence – without authority – for any reason – where the employee has been paid.

  • All absence – without authority – for any reason – where the employee has not been paid.

  • All absence – with authority – where the employee has been paid.

The information recorded above enables the employer:

  • To calculate the high cost of absenteeism for each employee and as a company total.

  • The information will be used by the employer in arriving at a performance review rating per employee.

  • To show each employee how much money they had lost for those absences that were unpaid.

  • Take into account the losses caused by absence without leave and sick leave abuse in calculating individual bonuses to be paid.

  • Taking into account the losses of absence without leave and sick leave abuse in calculating salary increases to be granted in excess of that which is prescribed by the National Bargaining Council for the Hairdressing, Cosmetology, Beauty, and Skincare Industry.

Without accurate records, do not even attempt to control it – you are wasting your time, and even more of your company’s money,


How to control it?

Employees must be made aware that you are watching the position, that you take full notice when employees are absent from work, and that you are doing something about it. A good way is to conduct an interview with the employee when they return to work in every instance of absenteeism and irrespective of the reason for the absenteeism. The employee must explain the reason for their absenteeism – and the employer will decide whether that reason is acceptable, or not. The employer will record the reason given by the employee and will record the discussion taken by the employer. If necessary, issue the employee with a written warning.


If the reasons given for the absence are valid and acceptable, then be reasonable and accept the employee’s reason for being absent – but you still place a note on their file, to record the absenteeism and the reason for it, and the action taken by the employer.


If the absenteeism is unjustified – take action! Do not let the employee get away with a rap over the knuckles. The very least must be a written warning, with a final written warning to follow if the offense is repeated.




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