One of the most frustrating challenges for employers is managing situations where employees are absent without communication.

In response to these challenges, employers tend to seek quick solutions that are often ill conceived. A typical example might involve relying on a rule or policy stipulating that an employee’s absence for a specified period without prior permission constitutes ‘abscondment’ or ‘desertion’, resulting in automatic termination of employment. However, this approach can prove costly.

The Khomari Case

This misguided approach was highlighted in the CCMA case of Khomari vs Tronox Mineral Sands (Pty) Ltd (2025). Ms Khomari, a senior employee, was absent from work for extended periods due to illness. She was dismissed for ‘absconding’ after failing to communicate with her supervisor for a period exceeding five days, as required by company policy, and failing to submit a medical certificate within the prescribed time frame.

Abscondment Policy

The company argued that the dismissal was procedurally fair “… because [Ms Komari’s] non-communication for a period exceeding 5 days automatically invoked the abscondment procedure that terminates an employee should the employee not return to work. Under these circumstances the abscondment procedure takes precedence over the disciplinary hearing procedure.”

As for Ms Komari being given an opportunity to state her case, the company argued that it “did not rush the decision to dismiss her and after ‘automatic termination’ she was allowed an opportunity to be heard.”

Evidence of Intention to Return

Contrary to the company’s position, Ms Khomari demonstrated her intention to return to work. Upon receiving the “Abscondment Note” from HR, she responded the same day, denying any intention to abscond. She provided evidence of her sick leave and committed to submitting a doctor’s certificate. She also confirmed her planned return-to-work date via follow-up communication.

Opportunity to Be Heard and Fairness Standards

The Commissioner ruled that Ms Khomari had not absconded, citing her clear intention to resume work. Referring to the Labour Appeal Court case of SABC vs CCMA & others (2002), the Commissioner emphasised that employers must adhere to the audi alteram partem principle (the opportunity to be heard) when addressing employee absences.

The Commissioner found that the company’s actions failed to meet procedural fairness standards outlined in the Code of Good Practice: Dismissal. A final warning, rather than dismissal, would have been an appropriate corrective measure. Consequently, the dismissal was ruled substantively and procedurally unfair, and the employer was ordered to pay six months’ backpay.

Abscondment vs Desertion: Understanding the Difference

The terms ‘abscondment’ and ‘desertion’ are often used interchangeably but, according to the Labour Court, differ in meaning:

• Desertion refers to an employee leaving the workplace without permission and with a clear intention not to return to work.
• Abscondment involves prolonged absence leading to the inference that the employee does not intend to return to work.

Employers do not need to grapple with this distinction. When there is uncertainty regarding an employee’s intention to return, adhering to the audi alteram partem principle and providing an opportunity to be heard are essential before making a decision about termination of employment.

If it is established that the employee intended to return to work, it would be inappropriate to charge them with desertion or abscondment. Instead, the disciplinary charges should be framed as “absence without permission or valid reason”, as well as “failure to communicate with the employer regarding the absence”.

Key Lessons for Employers

The Khomari case highlights critical lessons:

• Determine whether the employee has clearly shown an intention not to return to work. A mere failure to respond to calls to return to work is not sufficient to prove intent. Something more is required; for example, the employee having taken up other employment.
• Avoid rigid reliance on policies stating automatic termination of employment after a set period of absence.
• Always provide employees with a fair chance to explain their absence before deciding their employment fate.

Practical guidelines

Despite numerous cases illustrating employer missteps, case law has not provided clear guidelines for addressing situations where employers are unable to contact employees who are absent. In this regard, see our article at https://labourwise.co.za/labour-articles/dealing-with-desertion

Written by Jan Truter for Labourwise