A fixed-term employment contract is a contract in terms of which an employee is afforded employment for a fixed period of time, on certain terms and conditions. The contract and the employment relationship then automatically expire on the agreed-upon date.

In this part we will discuss the question whether an employee, whose contract had expired, has a claim against the employer for re-instatement.

This was the question that had to be dealt with by the Labour Court in MAOKO v METAL AND ENGINEERING BARGAINING COUNCIL & OTHERS 2010 ZALC 101.

The facts of the case can be briefly summarized as follows: The Applicant approached his former employer, the Third Respondent (‘Henlec’), for work as he was currently working as a security guard and not earning enough to support himself and his family. Henlec offered him work as a trainee guillotine
operator on a six month contract. The Applicant understood that this would be made permanent based on his performance. He started on 18 June 2007 and resigned from his previous employment. At the end of this period, instead of being made permanent he was asked to sign another contract for three months.
Although he initially refused, the employer persuaded him to sign that contract as well. He says he was reluctant to sign it, but felt he had no choice. The new contract ran from 14 January 2008 to 20 March 2008. Towards the end of that contract, the employer’s attitude towards the Applicant became abusive. He
entered another six month contract which ended on 24 September 2008. He was advised that this was the last contract he would be on. The Applicant interpreted this to mean that he would be permanently employed thereafter. That contract expired and he carried on working, but in January 2009 the Applicant
was given another contract to sign which ran from 12 January to 9 April 2009. He signed this despite his previous belief that he ought to have been permanently employed at the end of September 2008.

The employee then referred a dispute to the CCMA, claiming re-instatement on a permanent basis and at a higher remuneration rate.

The essence of the arbitration award is that the arbitrator found that the Applicant had knowingly entered into the fixed term contracts and if he complained that he had been forced to do this, that issue was not one the arbitrator could investigate, because only the Labour Court could deal with the interpretation of the contract. Having found that the Applicant knowingly undertook engagements on a fixed term basis, the arbitrator concluded that the Applicant had not been dismissed as he knew the contract was due to end on 9 April 2009.

In terms of section 186(1)(b) of the Labour Relations Act, a dismissal will occur if “an employee reasonably expected the employer to renew a fixed term contract of employment on the same or
similar terms but the employer offered to renew it on less favourable terms, or did not renew it”

The Labour Court decided that whether or not a reasonable expectation is created depends on the facts of the case. Factors which will be considered are the actual terms of the contract, the history of previous renewals. The conduct of the employer in dealing with the relationship, what the employer said to the
employee at the time the contract was concluded or thereafter, and the motive for terminating the relationship have been cited as factors to be considered when determining whether an employer implied that a fixed-term contract would be renewed.

In this instance, the employee did not rely on the provisions of Section 186(1)(b) of the LRA and therefore did not claim that there was a reasonable expectation of renewal of the contract, instead he claimed he had an expectation of permanent employment.

The Labour Court found that the first difficulty with this is that his own action in signing the short term contract in January 2009, runs contrary to his claim that he was permanently employed after September 2008. Secondly, the courts have generally been reluctant to accept that the definition of a dismissal in section 186(1)(b) also includes cases where the employee did not have an expectation of renewal of a fixed term contract but had an expectation of permanent employment.

The Labour Court confirmed the arbitrator’s decision that the employee had not been dismissed, and that the employment contract had expired.

Even if the employee had relied on the provisions of Section 186(1)(b) of the LRA, it is my submission
that he would not have succeeded with his claim.

A fixed-term employment contract is a contract in terms of which an employee is afforded employment for a fixed period of time, on certain terms and conditions. The contract and the employment relationship then automatically expire on the agreed-upon date.

In this part we will discuss the question whether a fixed-term contract can be terminated on the grounds of operational requirements.

The Labour Appeal Court had to deal with this question in BUTHELEZI v MUNICIPAL

The LAC confirmed the common law principles of a fixed-term contract, and stated that:

“There is no doubt that at common law a party to a fixed – term contract has no right to terminate such contract in the absence of a repudiation or a material breach of the contract by the other party. In other words there is no right to terminate such contract even on notice unless its terms provide for such termination. The rationale for this is clear. When parties agree that their contract will endure for a certain period as opposed to a contract for an indefinite period, they bind themselves to honour and perform their respective obligations in terms of that contract for the duration of the contract and they plan, as they are entitled to in the light of their agreement, their lives on the basis that the obligations of the contract will be performed for the duration of that contract in the absence of a material breach of the contract. Each party is entitled to expect that the other has carefully looked into the future and has satisfied itself that it can
meet its obligations for the entire term in the absence of any material breach. Accordingly, no party is entitled to later seek to escape its obligations in terms of the contract on the basis that its assessment of the future had been erroneous or had overlooked certain things. Under the common law there is no
right to terminate of a fixed – term contract of employment prematurely in the absence of a material breach of such contract by the other party.”

It was argued on behalf of the employer that the rule that parties to a fixed term contract should be held to such contract for the duration of the term of the contract in the absence of any material breach of the terms of such contract is unfair to an employer who wants to restructure his business before the expiry of the term of such contract.

The LAC found that there is no unfairness in such a situation. “This is so simply because the employer is free not to enter into a fixed term contract but to conclude a contract for an indefinite period if he thinks that there is a risk that he might have to dispense with the employee’s services before the expiry of the term. If he chooses to enter into a fixed term contract, he takes the risk that he might have need to
dismiss the employee midterm but is prepared to take that risk. If he has elected to take such a risk, he cannot be heard to complain when the risk materializes. The employee also takes a risk that during the term of the contract he could be offered a more lucrative job while he has an obligation to complete
the contract term. Both parties make a choice and there is no unfairness in the xercise of that choice.”

The LAC further found that the abour Relations Act did not impact on the common law principles.

Consequently it was found that he dismissal was substantially unfair.

In NKOPANE AND THREE OTHERS v INDEPENDENT LECTORAL COMMISSION 2006 ZALC 93 the Labour Court had to consider whether the employment contracts were rue fixed-term contracts, and whether the employer was entitled to prematurely erminate the fixed-term contracts.

The Labour Court onfirmed that if an employment contract is truly a fixed term contract it is legally incapable of valid premature cancellation for any reason other than material breach. An employee whose fixed term contract has been terminated for a reason other than breach is not confined to a contractual claim for damages. The dismissal can also be challenged as being unfair and relief for this can be
claimed under the provisions of the LRA.

A fixed-term employment contract is a contract in terms of which an employee is afforded employment for a fixed period of time, on certain terms and conditions. The contract and the employment relationship then automatically expire on the agreed-upon date.

In this part we will discuss the effect of resignation on a fixed-term employment contract.

This was the question that had to be dealt with by the North Gauteng High Court in MAROGA v ESKOM HOLDINGS LIMITED 2010 ZAGPHC 133.

The facts of the case can be briefly summarized as follows: In this instance the Applicant was appointed as the CEO of the Respondent and was employed in terms of a fixed terms contract for nearly 5 years. His contract was terminated towards the end of October 2009. He now challenges the lawfulness of the termination and seeks re-instatement, alternatively compensation.

For the purposes hereof, I am not going to deal with all the issues that was raised during the trial, as some of the issues does not relate to the question at hand.

The first issue that had to be decided is whether the employment contract had been terminated by the employer and/or whether the employee had offered to resign from his position.

The Court found that the employee had offered to resign from his position as CEO of Eskom, and that the
employment contract had not been terminated by Eskom.

The second issue is whether Eskom had accepted the offer of resignation.

The Court found that the employee’s offer of resignation was duly accepted by Eskom, and that the
employee had been informed of the acceptance of such offer.

The end result was that the Court found that there was no dismissal, and that the employee was not entitled to re-instatement.

The lesson to be learned from this case is that a voluntary resignation on the part of the employee will
result in a finding of non-dismissal.

We would like to advise our clients, who own businesses, of a number of amendments to the Tobacco Products Control Act, 1993, which came into operation on 21 August 2009. It is extremely important that you take note of these amendments, and where necessary, take the necessary measures to ensure that your business complies with the law.


Smoking is not allowed in any enclosed or partially enclosed public place, except in areas which have been specifically designated as smoking areas. Please note that smoking is no longer allowed in courtyards, partially enclosed entrances and exists adjoining enclosed areas which are accessible to the public, outdoor dining areas which are partially enclosed, as well as on covered balconies, terraces, verandahs or similar facilities.


The owner of a bar, shebeen, tavern, sportsbar, pub or restuarant may designated an area as a smoking area, provided that the designated smoking area does not take up more than 25% of the total floor space of the premises. Designated smoking areas MUST comply with the following requirements:

1.   The desginated smoking area must contain windows that open to the outside and which are open during any smoking activity and a seperate ventilation system that extracts air to the outside.

2.   The designated smoking area must be seperated from the rest of the premises by a concrete wall or solid partition and an entrance door on which the sign “smoking area” is displayed in letters that must be atl least 4 cm high and 3 cm broad, appearing as black and white only.

3.   The prescribed health messages and/or warnings must be displayed at the entrance to the designated smoking area, in blaqck lettering on a white background that must be at least 4 cm high and 3 cm broad, as follows: “The smoking of tobacco is harmful to your health. Tobacco smoke is harmful to your health. Tobacco smoke is also harmful to non-smokers. If you are pregnant or breastfeeding, toboacco may harm your baby. For help to quit please phone 011 720 3145.”

The owner of a restuarant may designate no more than 25% of the seating of the restuarant for use by smokers, provided that the restuarant has more than 35 seats and the designated smoking area complies with the 33 requirements listed above.

No person may smoke in or on any part of a business premises which is not a designated smoking area.


Vending machines from which tobacco products can be purchased can no longer be placed in bars, restuarants, pubs and similar premises, or any other place which persons under the age of 18 years have access. Therefore, vending machimes may be placed in designated smoking areas or places where only persons over the age of 18 years are allowed access. In addition, please note that vending machines from which tobacco products may be bought may no linger offer any other product other than a tobacco product for purchase by the public.


Any person who contravenes the provisions of the Act relating to vending machines may be prosecuted and, upon conviction, sentence to a fine of up to R100 000-00.



The owner , or person in charge of a business concern, must ensure that no person smokes in an area where smoking is not permitted. This implies that business owners will have to ensure that partially enclosed areas forming part of the business premises will have to be policed to ensure compliance with the Act.

Each contravention of the above provision may be met with a fine of up to R50 000-00.


The owner, or person in charge of a business concern, must ensure that no person under the age of 18 years in his/her employ or under his/her control sells or offers to sell any tobacco products on the business premises.

A fine of up to R100 000-00 can be imposed if the above provisions is contravened.


The owner, or person in charge of a business, must ensure that the use of tobacco products in or about the workplace does not interfere with the rights of non-smoking employees to perform their duties in a  smoke-free environment. Employers must ensure that if employees object to being exposed to smoking in the workplace, those employees are able to voice these objections without retaliation and are not exposed to tobacco smoke. In addition, no employee may be required as a condition of his/her employment, to work in any portion of the workplace where smokinhg is permitted, such as the desinated smoking area, nor may employees be required to indemnify their employer against any negative effects of working in an environment where smoking is permitted.


Compliance with the Act will be enforced by health officers employed by the National Department of Health, appointed in terms of the National Health Act, 2003.

These officers are authorised by the Act to conduct routine inspections as well as environmental health investigations on the business premises, and have extensive powers of entry, search and seizure.


Failure to give a health officer performing duties in terms of the Act the necessary asistance and cooperation is a criminal offence, which upon conviction, may give rise to imprisonment of up to 5 years, with or without the option of a fine.

In the matter of SAMANCOR TUBATSE FERROCHROME v METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL AND OTHERS 2010 ZALAC 7 the Labour Appeal Court dealt with such a situation. The employer appealed against the decision of the Labour Court in which the application for review was dismissed. The Commissioner, being the Second Respondent in the appeal, found that found that third respondent’s dismissal was substantively and procedurally unfair and ordered his reinstatement on conditions no less favourable than those that applied prior to his dismissal with effect from 2 November 2006.

Appellant conducts business in the mining sector and is a division of a larger mining company. Fourth respondent was employed by appellant as a furnace operator, having commenced employment with appellant in August 1996. On 20 May 2006, fourth respondent was arrested on suspicion of having committed an armed robbery. He remained in custody and was absent from work for approximately 150 days. On 30 May 2006, fourth respondent was dismissed on the grounds of incapacity, in that he was physically unable to tender his services. A letter advising him of his dismissal was delivered to the police station at which he was being held on 6 June 2006.

The dismissal letter read as follows:

Operational Incapacity Dismissal

You have failed to report for duty since the 20th May 2006 and you are therefore in breach of contract of employment as you are physically unable to tender your services required. Your service of employment is terminated with effect from 30 May 2006.

A post dismissal hearing will be held on your return to work to establish if you have a valid reason for your absence:”

On 2 November 2006 a post-dismissal hearing was held by the appellant, following fourth respondent’s release in custody. The hearing was chaired by Mr Niewoudt, appellant’s human resources manager, and was held in terms of appellant’s disciplinary code. This hearing determined that fourth respondent had been arrested on 20 May 2006, and was absent from work until 17 October 2006; that is for a period of approximately 150 days. It confirmed that fourth respondent had advised the appellant by way of a telephone call of his arrest on the day on which he was arrested. The following day fourth respondent’s sister informed the appellant of his arrest.

The chairperson found that the appellant could not have been expected to put in place a temporary arrangement for such a period of time which would have allowed fourth respondent’s position to be kept open for him. The position he held was an important one within the framework of appellant’s organisation. The criminal case against fourth respondent was still pending at the time of the post-dismissal hearing. This was a second instance within a six month period that fourth respondent had been arrested and had thus been absent from work. Accordingly, the dismissal of fourth respondent was upheld.

Fourth respondent then referred the matter to arbitration and the dispute was heard by second respondent. Second respondent found that the dismissal was substantively unfair because respondent had not taken proper account of the fact that fourth respondent had no control over the circumstances and duration of his absence. Furthermore, on 30 May 2006, when appellant made his decision to dismiss fourth respondent, no opportunity was given to the latter to present his case. Accordingly, the dismissal was also procedurally unfair. For these reasons, appellant was ordered to reinstate fourth respondent on conditions no less favorable than those that applied prior to his dismissal with effect from 2 November 2006.

The Labour Court, in the review application agreed with the Second Respondent, and said:

It is not clear what misconduct he was guilty of since he was not the cause of his incarceration. It was a factor beyond his control and could therefore not be said that he had been absent without permission. He was not the author of his own misfortune since he had a valid reason for his absence he had to be reinstated with loss of income.”

It is evident from the reasoning of the second respondent and the Labour Court that it placed a lot of emphasis on term “incapacity”. It was argued that incapacity had to caused by ill-health, injury or poor work performance. This argument was rejected by the Labour Appeal Court.

The Labour Appeal Court found that the question as to whether a dismissal in the circumstances of the present dispute, is substantively fair depends upon the facts of the case. An employer needs to consider the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist. It continued and found that

“In my view, given the facts of the present dispute, it was not reasonable to expect appellant to have kept the position open and available to fourth respondent for an indefinite period of time, particularly in circumstances where he held an important position within the organisation. The potential indefinite length of the absence from work of a person holding a position which could not easily be filled by temporary employee renders this case one of incapacity as I have applied that term.” Thus it was decided that the dismissal was substantively fair.

Turning to the question of procedural fairness, the Labour Appeal Court found as follows:

“It may have been impossible for appellant to hold a pre-dismissal hearing while the fourth respondent was incarcerated.But, merely providing fourth respondent with a letter informing him in writing of the decision to dismiss him and the reasons for the dismissal while he was in prison did not constitute a fair opportunity for fourth respondent to present his case.”

As a result the Labour Appeal Court found in favour of the second respondent and ordered the appellant to pay compensation equal to 6 month’s salary.


The question that needs to be asked is when the employer should have held a disciplinary enquiry, especially seen in view of the lenght of time that the employee was incarcerated. Obviously, in such circumstances, the employer will have been forced to employ another person during and for the period of the employee’s incarceration. It is thus advisable that the employer waits for the employee to return to work.

However, it may happen that an employee is arrested on suspicision of having committed a crime, remain in custody pending the finalisation of the trial, is found guilty on trial and is sentenced to direct imprisonment. All this may take some months. According to this judgment, the employee may not be dismissed unless a dsiciplinary hearing was held to determine the reason for the employee’s absence and to make a finding as to his future with the employer. It is suggested that in such an instance, the employer consider obtaining permission from the Department of Correctional Services to conduct a disciplinary enquiry on their premises.

The Labour Court in the matter Carlbank Mining Contracts (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others
(Braamfontein Labour Court) (unreported case no JR1592/07, 21-7-2010) (Van Niekerk J), was faced with the question whether a private arbitration clause in an employment agreement between the employer and employee is enforceable in a situation where both the employer and employee fall under the jurisdiction of a barganing council and where a collective exists that sets out a distinct dispute resolution path.

Subsequent to his dismissal, the employee referred his dispute to the first respondent (the council). At conciliation the applicant (employer) raised a point arguing that the council did not have jurisdiction to entertain the matter. In support of its claim the employer referred to an agreement entered into between the employer and employee, whereby an unfair dismissal dispute would be referred to private arbitration.

It was not disputed that the employer would bear the cost of the private arbitration and that the institution to conduct the arbitration (Tokiso) was a reputable agency independent of the applicant.

The second respondent (commissioner) ruled the council’s collective agreement took precedence over the contractual agreement and further that the contractual agreement was unenforceable as it constituted a waiver of a right conferred by the collective agreement. The commissioner further found that the contractual agreement left the employee in a less favourable position in that he would have to seek out Tokiso and contribute to the costs of the arbitration.

The applicant applied to the Labour Court to review and set aside the commissioner’s jurisdictional ruling.

While acknowledging that a collective agreement takes precedence over an employment contract, the court did not accept the argument that a bargaining council had a monopoly over all disputes emanating from parties who fell under the jurisdiction of the council. The council’s collective agreement did not place an obligation or a right on parties to refer their disputes to the council. The LRA encourages private dispute resolution and there was no reason why this did not extend to parties falling under the jurisdiction of a bargaining council.

In addressing Section 199, more particularly the issue of a waiver, the court held that if there is no right to refer a dispute to the council, there could not be any waiver if parties chose to refer their dispute for private arbitration. The court also rejected the argument that the contractual agreement rendered the employee in a less favourable position. It was not disputed that Tokiso was a reputable independent agency or that the employer would bear the full cost of the arbitration. In comparison to other employees who referred their dispute to the council, the employee was not is a less favourable position as a result of the contractual agreement.

However, in par 16 of his judgment, Van Niekerk J made the following important remark: ‘… If, for example, the nominated arbitrator appears to be less than qualified or impartial, or where the employee is obliged to contribute toward the cost of the arbitration proceedings, it seems to me that a bargaining council or this court would be empowered, after an evaluation of the arbitration agreement, to decide that the agreement provides for less favourable treatment than that provided by any collective agreement concluded by the council, and that the agreement is therefore invalid.’

The commissioner’s ruling was set aside.

It should be remembered that the LRA contains no provision which stipulates that a party must refer its dispute to a particular dispute resolution forum.

Parties who are subject to a arbitration agreement may in certain circumstances approach the court for on order releasing them from the arbitration obligation. Section 3(2) of the Arbitration Act 42 of 1965 reads as follows:

‘The court may at any time on the application of any party to an arbitration agreement, on good cause shown –

  1. set aside the arbitration agreement; or

(b)    order that any particular dispute referred to in the arbitration agreement shall not be referred to arbitration; or

(c)    order that the arbitration agreement shall cease to have effect with reference to any dispute referred.’

In Giddings v Beige Holding Ltd
(Johannesburg Labour Court) (unreported case no JR 1287/2009, 11-2-2010 ) (Lagrange AJ), the above section was relied on to release the applicant employee from a private arbitration clause. The Labour Court found that a party is entitled to be released from such an agreement under circumstances where the enforcement of the agreement would result in an employee’s right to fair labour practice being infringed. In this particular instance the application was granted for the reason that the employer disputed the true identity of the employer, and that there existed a real possibility that the issue of the identity of the employer is neglected or that conflicting findings is made regarding the real identity of the employer.


In terms of Section 22 of the Basic Conditions of Employment Act, an employee may have no more than 30 day’s sickleave in a 36 month leave cycle (in other words 1 day sick leave every 6 weeks). The leave cylce commences on the day the employee commences employment or on completion of the previous sick leave cycle.

If the employee is absent from work for more than 2 consecutive days or on more than 2 occasions during a 8 week period, the employer is not obliged to pay the employee, unless the employee has provided a medical certificate which states that the employee was unable to work for the period of his absence as a result of an illness or injury.

Every employer should have a sick leave policy in place which governs such aspects absenteism, submission of medical certifcates, absconment etc.

The worst strategy with sick leave abuse and frequent absence is to ignore it, hoping that it will disappear or sort itself out. More often that not, if left unattended, the frequency and period will increase and it is often coupled with other misconduct such as fraud, late coming, poor performance, poor relations with other employees and insubordination.

Another problem is when employers have codes of conduct on sick leave, absence and abuse of sick leave, but those codes are not consistently applied by management. Employees will certainly abuse this inconsistency, causing a frequency of abuse.

Another problem is that some employees feel they are owed the sick leave and if they don’t use it, they lose it. It must, however, be born in mind that sick leave is not an entitlement, but a benefit that the employee may apply for if he or she has met the requirements of the employer, such as a valaid medical certificate. Please read my previous post “Medical Certificates”.

Can medical certificates be challenged?

Yes, provided that the medical certificate does not comply with the relevant requirements (see my post of “Medical Certificates”).

In the matter of Imatu obo F.A Ward v Ethekwini Municipality 2009 18 SALGBC 8.17.6 the employer refused to entertain or accept the medical certificate issued by a doctor. It was ruled that while employers had a right to challenge a medical certificate, a medical expert had testified that the applicant’s medical certificate for the limited period of 9 June 2008 to 30 June 2008 was genuine and authentic. The respondent’s refusal to entertain applicant’s medical certificate was therefore a serious procedural irregularity amounting to unfairness. The fact that an errant employee might have little or nothing to show in his own defence does not affect his entitlement to a fair hearing.

Can frequent absenteism result in a finding that the employee is incapacitated?

In the matter of NUMSA obo Gwadela / Halberg Aluminium [2009] 8 BALR 753 (MEIBC) the Commissioner found that, although there was some dispute over which version of the absenteeism policy applied, it was clear that the manner in which the respondent handled absenteeism caused by illness, was consistent with the principles laid down by labour legislation, and underscored the fact that employees whose absenteeism exceeds a certain level have proved themselves incapable of discharging their contractual duties. The employee had chosen not to attend counselling sessions and had proffered explanations only at the final disciplinary hearing. He was the architect of his own misfortune.

Can an employee be dismissed if he was sentenced to imprisonment by a court of law for a criminal offence?

If an employee is sentenced to a period of direct imprisonment by a court of law, for an offence that has nothing to do with his employment, it will mean that the employee will not be able to render his services to the employer. Is the employer thus entitled to terminate the employment agreement?

In the matter of NUM & another v CCMA & Others (2009) 18 LC 1.11.15, the employee, was arrested for the death of another person, which was not work related. The employee was eventually convicted on a charge of culpable homicide and sentenced to five years’ imprisonment. He was informed by the employer that, because he was no longer able to work, he had repudiated his contract of employment and that the employer had accepted this repudiation.

The CCMA commissioner found that no dismissal took place in this case. The employment contract automatically terminated because of impossibility of performance on the part of the employee. The employee was the author of his own misfortune.

The Labour Court overruled this finding. The Court noted that when the employer was informed that the employee was in prison and accordingly unable to perform his duties, it had expressly accepted the employee’s “repudiation” and cancelled his contract with immediate effect. The only reason given by the commissioner for the conclusion that the termination did not constitute a dismissal was that the contract terminated “automatically” because the employee was unable to perform his duties. This, the court found, conflicted with a number of judgments of the Labour Court to the contrary, and was clearly wrong. The commissioner had also made no effort to establish whether the incapacity in casu was temporary or permanent or, if temporary, whether the period of absence was reasonable. The Court concluded that the commissioner’s finding was unreasonable.

What must be considered in evaluating an employee’s absenteism?

Factors that should be considered include the time of the absence (Mdlalose v eThekwini Municipality (2009) 18 SALGBC 8.17.3), the impossibility of the employee to return or of the employer to trace the employee. Shorter periods can also lead to dismissal, if the circumstances warrant it (IMATU obo Gwala v City Engineers (2009) 18 SALGBC 8.17.2).

In the matter of Mdlasose v Ethekwinin Municipality [2009] JOL 23988 (SALGBC) the requirements to be applied by an employer in determining whether absenteeism is acceptable or not was considered. It was held that the reasons for the applicant’s absence, the length of absence, the nature of his work, previous warnings and whether the employee had attempted to contact the employer during the period of absence should all be considered. The applicant had been absent from the 27 December 2006 to July 2007. While the applicant did not contact respondent during his absence, the respondent had attempted to locate the applicant. Furthermore, the applicant had not called evidence of the traditional healer by whom he claimed to have been treated for seven months. His later application to re-open proceedings to call the traditional healer was properly rejected. In the circumstances the applicant had failed to explain his absence or to show good cause why he should be reinstated. His dismissal was substantively and procedurally fair.

What is the difference between desertion and abscondment?

In SACCAWU obo Khakhatiba v Country Meat Market (Pty) Ltd (2008) 17 CCMA 8.17.1
it was found that abscondment is deemed to have occurred when the employee has been absent from work for a time that warrants the inference that the employee no longer intends to resume work. Desertion is deemed to take place when an employee expressly intimates that he will not resume work. In all such cases, the onus rests on the employee to explain the absence.

In Mtshinindo v Cashbuild Hillfox (2009) 18 CCMA 8.17.2 it was found that it is required of the employer to show that the employee did not have an intention to return to work in order to claim abscondment or desertion.