6th JULY 2022 WHEN AN EMPLOYEE ABSCONDS Your employee has not reported to work for a week. You have no idea where he is and you choose not to bother finding out. Instead, you opt to replace him. You hire a new employee. Two days later, the first employee returns to work with an excuse that he has been unwell or he was in police custody. You inform him that his services are no longer needed. You pay him and ask him to leave. Have you acted within the law? When an employee absconds, he should be replaced as work has to go on. But the law requires that you follow certain procedures, one when he is missing and two, as soon as he gets back before handing him the termination letter. First, when the employee is missing, you must take steps to look for him. The steps you take are critical evidence in the event of a legal suit in future. This can be through phone calls, emails, letters, inquiries among colleagues and family members, next of kin or his referees. Obviously, you may or may not reach him but trying to look for him is good enough. Should you reach him, you must also try to find out the reason for his absenteeism. Next, you must inform him of the likelihood of losing the job should he fail to report. As stated, evidence of these steps is very crucial. Now the employee has resurfaced just after you have hired his replacement and you have decided to terminate his contract. You can’t just send him away. You are required to take him through a disciplinary procedure well set out in law, specifically in Sections 42 and 44 of the Employment Act. You are required to explain to the employee that you intend to take action against him for absconding (gross misconduct). You must explain this to him in the language he understands best. You must then give him the opportunity to explain and to give his side of the story. And when doing so you must allow him to choose either to be accompanied by another employee of his choice or a representative of his trade union. Should you still decide to dismiss him, you must explain that you have considered all his explanation and give him reasons why you have decided to terminate his employment. With no evidence that you took all these steps, a labour court will easily find that the dismissal was unfair and award the employee damages against you |
