Thato works for a construction company. He is a hard worker – never late for work, always doing more than what is expected of him. So when he applied for leave to go to his mother’s funeral, he didn’t think it would be a problem. His 5 days of leave were approved and he thought everything was fine. He left for Limpopo to take care of the funeral arrangements. But Thato’s boss didn’t like him. When he got back, his boss told him he was fired for absconding from work. AZIKHIPHI! That’s not on!
Thato didn’t know what to do, and his boss had access to the company lawyer, so he was scared. He couldn’t argue with them, he didn’t even know what half the legal stuff meant! So he left the company and tried to find other work.
Scorpion Legal Protection’s advice
Leave and abscondment are two very different things. Leave is when you arrange with your employer to take time off from work. You can only take leave if your employer has approved it. Abscondment is when you stay away from work for a number of days without letting your boss know anything and your boss can’t get hold of you. This can result in your dismissal. Since Thato had made arrangements with his employer, the days he was off from work should have been counted as leave.
Thato did the right thing by asking his employer for time off. But even if he didn’t follow the right processes, his boss would not be able to just fire him. Legally, he would have to take the following steps first:
- Phone him. Only once an employer has failed to reach the employee can they go to the next step. The times of the calls and the messages that were left for the employee should be noted.
- Ask colleagues and family members about the employee’s whereabouts and include their comments in the report.
- Send a letter to the employee through registered mail.
- Stop payments. An employer is under no obligation to pay an employee if they don’t come to work.
Thato can lodge an application for unfair dismissal at the CCMA. If the CCMA finds the dismissal to be unfair, they could order Thato‘s employer to either reinstate him in his job or pay him out compensation for the unfair dismissal.
Tips:
- Always make sure you follow the right process when applying for leave. If you’re not sure, rather ask your employer or human resources.
- You are entitled to annual and family responsibility leave. Public holidays can’t come out of your annual leave.
- You cannot be dismissed if your leave was approved.
- Your employer must approve your leave beforehand.
- Your leave can be cancelled by your employer if necessary.
- If you follow the right process and you are unfairly dismissed, you have 30 days to refer the matter to the CCMA.
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* Names are fictional.
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This is only basic advice and cannot be relied on solely.