AWOL and not notifying the employer

Advocate Nicolene Erasmus

How does an employer deal with an employee who stays away from work with or without an excuse and does not notify the employer that he will not come to work?

The first question that needs to be answered is whether the employee was absent with or without a valid excuse. If the employee has a valid excuse, he cannot be found guilty of being absent without leave. Let us look at the following example: employee A is absent from the workplace for a period of 2 days. On day 3 he reports for duty and tells the employer that he was in bed with a terrible migraine. Unless the employer has proof that the employee was not in bed with a migraine, the employer will not be able to find the employee guilty. However, if an honest employee admits that he was in Sun City, he might have an explanation for his/her absence, but it is an explanation that an employer is unlikely to accept, leading to disciplinary action. Employees often inform their employers that they will not be at work, assuming that they then have permission to be absent. Using the above example, the mere fact that an employee “informs” his manager or supervisor that he is not going to be at work but at Sun City, is not going to change his fate as far as disciplinary action is concerned. Unless of course, the manager or supervisor has given him permission to go to Sun City.

The second question deals with the issue of notification. Would the outcome be different if the employee notifies the employer of his absence? Or put differently: can an employer dismiss an employee who has an acceptable reason for his/her absence, but fails to notify the employer of the reasons for the absence? The answer is yes!

In Jacobs / JDG Trading (Pty) Ltd [2004] 9 BALR 1045 (P) the employee was dismissed for being absent without leave for five working days. He submitted a medical certificate indicating that he was unfit for work due to lumbago for the first two days, a Thursday and a Friday. The employee then stayed away from work from Monday to Wednesday the following week, and produced a medical certificate during his disciplinary hearing, indicating that he informed the doctor that on those days he was unfit for duty due to stress. The employee claimed he had been too ill to contact his manager to inform her of his whereabouts, and was subsequently dismissed for unauthorised absence from work.

As far as the status of the medical certificate is concerned, Commissioner Grogan held that the pro forma certificate confirms no more than that the employee was examined and that the doctor “was informed” that the employee was unfit for work between 3 and 5 November due to stress. In the absence of direct testimony from the doctor, the certificate cannot be accepted as proof that the applicant was in fact ill on the days in question.

Commissioner Grogan held further that:

“…it is in my view implicit in the contract of employment that such an employee should at least notify management as soon as reasonably possible of the reason for the absence and its likely duration. While employees are entitled to sick leave, this entitlement does not relieve them of that duty. In my opinion, an employee is guilty of absenteeism if he or she is absent from work without good reason or, even if there is an acceptable reason for the absence, if he or she fails to inform management timeously of the reason for the absence.”

To summarise: an employee who does not have a valid excuse for his absence, is guilty of absenteeism even if he notifies the employer of his absence. And an employee who has a valid excuse for his absence may be found guilty on a charge of absenteeism if he failed to notify the employer timeously of the reasons for his absence.

For more information contact Nicolene Erasmus[email protected]