Employees are legally required to render their services to their employers. When they fail to do so, particularly without authorization, such conduct may amount to either misconduct or incapacity, depending on the context and circumstances.
The Labour Court’s decision in Sibanye Rustenburg Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR 2227/21) [2025] ZALCJHB 207 (30 May 2025) provides fresh confirmation that unauthorised absence from work, commonly referred to as desertion, constitutes a form of misconduct that may justify dismissal.
Facts of the Case
Sibanye Rustenburg Platinum Mines employed Mr Totswana and Mr Mazambane in roles critical to underground operations, namely as a rock drill operator and a shift supervisor. Their employment contracts were governed by an internal HR procedure dealing specifically with desertion. According to this policy, any employee who fails to report for duty for seven or more consecutive days without notifying the employer may be considered to have deserted their post.
Both employees were dismissed on 4 and 7 December 2018, respectively, after extended periods of absence without explanation. They resurfaced only after approximately 16 months and attempted to resume their duties. Sibanye informed them that their employment had already been terminated due to desertion.
Subsequent internal appeals proved unsuccessful. The employer highlighted the operational importance of their roles and the challenges posed by their unannounced absence. The Association of Mineworkers and Construction Union (AMCU) referred an unfair dismissal dispute to the CCMA on their behalf.
Arbitration Proceedings
The central question before the CCMA was whether the dismissals were substantively fair, particularly when viewed through the lens of the company’s desertion policy. The commissioner had to evaluate several factors, including the clarity and reasonableness of the rule, whether the employees were aware of it, its consistent application, and whether dismissal was an appropriate sanction in the circumstances.
AMCU contended that the employees had not abandoned their posts but had been incarcerated during the period in question. Since they intended to return to work once released, AMCU argued that their absence was justifiable. Sibanye, on the other hand, maintained that the employees had breached a legitimate workplace rule and that attempts to contact their next of kin had been unsuccessful.
The commissioner accepted AMCU’s argument, concluding that the employees’ absence was adequately explained and that their intention had never been to desert the workplace. As a result, the dismissals were found to be substantively unfair, and retrospective reinstatement was ordered.
Labour Court’s Review
Sibanye took the matter on review to the Labour Court, which found significant flaws in the commissioner’s reasoning. Although the arbitrator correctly identified the applicable legal test, the Court found that she failed to apply it properly to the facts.
The Court emphasised that the key inquiry was not whether the employees had a valid reason for their absence, but whether they were absent without permission, thereby breaching the employer’s rules. Referring to Glecore Operations SA (Pty) Ltd v CCMA & Others [2021] BLL 1013 (LC), the Court stressed that desertion, in the employment context, does not necessarily require a proven intention never to return, but rather prolonged absence without the employer’s authorisation.
It was common cause that Totswana and Mazambane had been absent for over a year without notifying Sibanye of their whereabouts or circumstances. Their absence fell squarely within the scope of the desertion policy. The Court held that the arbitrator’s expectation that Sibanye should have done more to investigate their location, such as on ‘humanitarian grounds’, was misplaced. Reasonable efforts had already been made to reach out via next of kin.
Accordingly, the Labour Court set aside the arbitration award on the basis that the commissioner’s decision was unreasonable and unsupported by the evidence. The order of reinstatement was also deemed inappropriate given that the employees were unable to fulfil their duties for an extended period.
Practical Lessons for Employers
This judgment underscores that when employees are absent without authorisation for a sustained period, and the matter is treated as misconduct, employers should frame their disciplinary charge as unauthorised absence in terms of applicable company policies, rather than a failure to inform.
The key questions in such cases are:
- Was the employee absent?
- Was the absence authorised?
The reasons for the absence such as incarceration, may be relevant but are not decisive when assessing whether the conduct constitutes a policy breach.
Although the law does not impose a strict duty on employers to investigate the whereabouts of absent employees, it is nevertheless best practice to attempt contact via known channels such as next of kin.
Finally, any dismissal, particularly for desertion, must still comply with procedural fairness. Employers should ensure that the employee is afforded an opportunity to be heard once contact is re-established, even if after a lengthy absence.
