Dismissal for Desertion: Labour Court Overturns Reinstatement After 16-Month Absence

In South African labour law, employees are legally obliged to place their services at the disposal of their employers during agreed working hours. Failure to do so, without valid authorisation, may justify disciplinary action. In some cases, such absenteeism can be classified as misconduct, particularly where the absence is prolonged and unexplained.

A recent Labour Court ruling in Sibanye Rustenburg Platinum Mines v CCMA and Others [2025] ZALCJHB 207, reaffirms that unauthorised prolonged absence from work may constitute desertion—an offence that can legally warrant dismissal under appropriate circumstances.

Case Overview: Sibanye Rustenburg Platinum Mines

The dispute involved two employees, Mr Totswana and Mr Mazambane, who held vital operational roles at Sibanye Rustenburg Platinum Mines. Both employees were bound by an internal HR Desertion Policy, which defines desertion as failure to report for work for seven consecutive days or more, without permission.

After failing to report for duty for extended periods, their employment was terminated in December 2018. Surprisingly, both employees reappeared 16 months later, seeking to return to their former positions. Sibanye, maintaining its position under the policy, informed them that they had been dismissed due to desertion.

Following unsuccessful internal appeals, the matter was referred to the Commission for Conciliation, Mediation and Arbitration (CCMA), with the assistance of the union AMCU, on grounds of alleged unfair dismissal.

CCMA Ruling: Misconduct or Misunderstanding?

At arbitration, the CCMA was tasked with determining whether the employees’ dismissal complied with the principles of substantive fairness, as prescribed by the Code of Good Practice: Dismissal.

Arguments Presented:

AMCU argued that the employees had not deserted but had been incarcerated, a fact which they believed constituted a reasonable excuse for their prolonged absence.
Sibanye maintained that it had a reasonable workplace rule in place and had made efforts to locate the employees, including contacting next of kin.

The arbitrator ruled in favour of the employees, finding that they had intended to return to work and provided a valid reason for their absence. The award included retrospective reinstatement, finding the dismissal to be substantively unfair.

Labour Court Review: Clarifying the Test for Desertion

Sibanye took the matter on review to the Labour Court, which overturned the CCMA’s decision.

Key Findings by the Labour Court:

The arbitrator correctly identified the legal test for misconduct but misapplied it to the facts.
The desertion policy was lawful, valid, and known to the employees.
Totswana and Mazambane were absent for over a year without notifying the employerconstituting misconduct, regardless of their incarceration.
The core issue was not the reason for absence, but whether the unauthorised absence breached workplace rules.
The employer was not legally obligated to investigate further or go beyond reasonable steps (such as contacting next of kin).

Citing Glencore Operations SA v CCMA [2021] BLLR 1013, the Court held that unauthorised absence alone, especially over a prolonged period, can justify dismissal, even in the absence of an express intent to desert.

The arbitrator’s reliance on humanitarian grounds was found to be misplaced and legally unfounded.

As such, the retrospective reinstatement order was set aside, and the dismissals upheld as substantively fair.

Key Lessons for Employers: Absence Without Leave and Desertion

This judgment offers essential guidance on managing cases involving absenteeism or desertion:

1. Focus on the Conduct, Not the Excuse

In matters of desertion, the key issue is whether the employee:

Was absent without permission,
Knew of the rule prohibiting such absence,
Failed to communicate or seek authorisation within a reasonable timeframe.

An employee’s intent to return or circumstances like incarceration do not automatically excuse the breach of duty to report for work.

2. Frame Allegations Clearly

When dealing with unauthorised absence:

Avoid framing the issue as “failure to communicate”;
Rather frame it as “absence without authorisation” in line with internal policies.

This aligns the case with established disciplinary procedures under the Labour Relations Act.

3. Reasonable Efforts Suffice

Employers are advised to:

Attempt to contact the employee or their emergency contacts;
Keep records of all such attempts.

However, they are not expected to act as investigators or make extensive humanitarian inquiries.

4. Follow Procedural Fairness

Even in cases of desertion, employers must still:

Send formal communication regarding the absence,
Invite the employee to make representations (if they reappear),
Document the process leading to dismissal.

Final Thoughts: Enforcing Discipline While Respecting Rights

The ruling underscores that unauthorised prolonged absence may justifiably lead to termination, especially when internal policies are clearly established and communicated. Employers must be consistent in applying such policies but are not legally bound to investigate the employee’s personal circumstances beyond reasonable effort.

For employers in South Africa, this case provides a solid precedent to defend fair dismissals for desertion, provided that internal procedures and the principles of fairness are respected.

Need Advice on Desertion or Misconduct Dismissals?

Mayet & Associates advises employers on all aspects of labour law compliance, including:

Desertion and absenteeism cases
Disciplinary hearings
Drafting of internal policies
CCMA representation and Labour Court litigation

📍 Contact our Bloemfontein or Maseru offices for professional guidance in managing labour-related disputes.

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