When does staying away from work become Desertion?

Are you allowed to just take days of work without informing your superiors? In short, the answer is always NO. Sometimes a situation occurs that you are not able to inform the employer, e.g. being in the hospital. So, when does this become desertion?


The MIBCO Main Collective Agreement provides in Clause 7.4 that “An employee will be regarded as having deserted from his employer’s service after a continuous absence of five working days and without notification to his employer of his whereabouts: Provided that –


  1. the employer attempts to contact the employee in writing at his last known address supplied by the employee;
  2. the employee was duly notified in writing of the necessity to furnish his employer with his address and any changes of address;
  3. the employee shall be allowed a period of one month to lodge with his employer a written appeal against his dismissal.” (Own Emphasis)


Looking at the element of desertion, the Courts determined that desertion is a wilful abandonment of employment or duty in violation of a legal or moral obligation, this supports the view of Seabelo v Belgravia Hotel [1997] 6 BLLR 829 (CCMA) where they stated:


 “Desertion takes place when employees leave employment with the intention of not returning to work, such intention to be established from, absence of communication with the employer and length of the absence” (Own Emphasis)


A formal hearing must be held after the employee has returned from the suspected desertion, as the employer bears the onus to proof an unambiguous intention not to return.


In a Nutshell: staying away from your workplace becomes desertion after 5 days not being at work without informing your employer of your whereabouts. If you have been dismissed for desertion you will have one month (30 days) to dispute this with the employer.


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