- â—† Amandla Makhongwana, Senior Associate - Bowmans
- â—† Sanele Vilakazi, Associate - Bowmans
- â—† Enock Mogajana, Candidate Legal Practitioner - Bowmans
Employees have a legal obligation to place their services at the disposal of their employers. Where they fail to do so, different consequences may arise and the matter could, depending on the facts, be treated as a form of misconduct or incapacity.
The recent judgment in the matter between Sibanye Rustenburg Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR 2227/21) [2025] ZALCJHB 207 (30 May 2025), reaffirms the principle that desertion, or being absent without permission, is a form of misconduct, for which an employee may be fairly dismissed.
Background facts
Sibanye Rustenburg Platinum Mines (Sibanye) employed Messrs Totswana and Mazambane in the operationally critical positions of rock drill operator and shift controller, respectively. Both Totswana and Mazambane were bound by Sibanye’s HR Procedure Policy on managing desertions (Policy), which provides that an employee will have deserted their position following a failure to report to work for seven or more consecutive days. They found themselves in contravention of the Policy and their employment was terminated on 4 and 7 December 2018, respectively.
Totswana and Mazambane resurfaced some 16 months later and duly reported to work. However, they were informed of their dismissals for having deserted the workplace. Their attempts internally to appeal their dismissals were fruitless, with Sibanye confirming that it was critical for Sibanye’s operations to fill their positions in their uncommunicated and prolonged absence. Their union, AMCU, assisted them to pursue an unfair dismissal dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA).
Consideration by the CCMA
The central issue before the CCMA was whether the dismissal of the employees for desertion, in terms of the Policy, was substantively fair. Pertinently, the arbitrator was required to consider the Policy, the validity and reasonableness of the rule, whether Totswana and Mazambane were aware of the rule, whether the rule was consistently applied and whether the dismissal was an appropriate sanction in the circumstances – in line with the Code of Good Practice: Dismissal.
AMCU argued that Totswana and Mazambane had not deserted their positions but were incarcerated and had the intention of returning to work. Accordingly, they argued that the incarceration constituted a reasonable explanation for their failure to report for duty within the timelines stipulated in the Policy. Sibanye argued that there is a reasonable workplace rule that Toswana and Mazambae breached, and that there were reasonable efforts made to determine their whereabouts, including contacting their next of kin.
Having considered the evidence before her, the arbitrator concluded that there was a reasonable explanation for the employees’ absence and that there was also an intention to return to work. Therefore, he found dismissal to be substantively unfair and ordered retrospective reinstatement.
The Labour Court proceedings
Sibanye sought to review the arbitration award at the Labour Court. The Labour Court, in reviewing the arbitration award, found that although the arbitrator had correctly articulated the legal test applicable to misconduct, she failed to properly apply it to the facts of the case.
The Labour Court found that there was a valid and reasonable rule on desertion, which Totswana and Mazambane were aware of. Moreover, it was common cause that they had been incarcerated for 16 months, without Sibanye’s knowledge.
Referring to the judgment in Glecore Operations SA (Pty) Ltd v CCMA & Others [2021] BLL 1013 (LC), the Labour Court emphasised that the true nature of the enquiry before the arbitrator was not whether the employees had a reasonable explanation for their absence, but whether their conduct, specifically their prolonged absence without permission, constituted misconduct in terms of Sibanye’s Policy.
Whether or not the Sibanye was informed of the incarceration did not detract from the fact that the Totswana and Mazambane were absent for a long time without permission and had effectively deemed to have deserted their workplace in terms of the Policy.
The Labour Court found that the arbitrator’s decision was unreasonable and that she had misdirected herself in finding that there was no desertion, because there had been no intention to desert.
Further, the Labour Court found the arbitrator’s decision that Sibanye was required, on ‘humanitarian grounds’, to take steps to ascertain Totswana and Mazambane’s whereabouts to be unreasonable and not founded in law. Sibanye did attempt to contact the next of kin without success.
Moreover, the Labour Court found the relief of retrospective reinstatement to be unreasonable, considering that the employees were unable to render their services to Sibanye for the period they were incarcerated.
Keys takeaways
In circumstances where an employee appears to have deserted the workplace, and the matter is approached through the lens of misconduct, it is recommended that the employer frame the concerns or allegations of misconduct against the employee as being absence without permission (with reference to the applicable policy, if any), as opposed to a failure to inform the employer of such absence.
In such circumstances, the enquiry should focus on whether the employee was in fact absent and whether such absence was without permission. The reasons for such absence, or an intention to desert, and whether or not the employee communicated their absence to the employer, then does not detract from the fact that the employee has breached their obligation to place their services at the disposal of the employer and committed misconduct.
In such circumstances, employers are arguably not required to investigate the circumstances around an employee’s desertion. However, it is nevertheless advisable that an employer contact the employee’s next of kin to attempt to ascertain the employee’s whereabouts.
It remains important for employers to follow due process in dismissing employees alleged to have deserted.
