Termination on the Ground of Absenteeism: What You Need to Know
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Termination on the Ground of Absenteeism: What You Need to Know

What is Absenteeism?

Absenteeism is an employee’s absence from work or duty without permission and/or good reason. Employers perceive this as a breach of contract. It is also a common headache that they have because of the cost implications it has on the organization, such as:

  • Reduced profit margins where employers spend a portion of their profit on paying overtime or hiring replacements to do the work of the absent employee.
  • Decreased revenue in situations where a particular production activity has stalled because the person responsible for that activity is absent.

As frustrating as this sounds, an employer is still required to follow due process before terminating the services of such an employee. The power to summarily dismiss an employee for absenteeism is derived from the Employment Act. Section 44 (4) of the Act classifies absenteeism as gross misconduct which warrants summary dismissal. However, section 44 (1) prohibits an employer from summarily dismissing an employee with less notice or no notice at all. Further, section 41 (2), requires an employer to hear an employee’s case before summarily dismissing them for misconduct.

The Recommended Procedure

  1. An employer ought to issue an employee with a notice to show cause why disciplinary action shouldn’t be taken against them. The notice should indicate the time within which the employee is required to respond.
  2. Once this is issued, the employee should be given a chance to respond and come to his/her defense within the specified timeframe.
  3. If the employer is not satisfied with the reason given, the employee is notified that disciplinary action will be taken against them and the date this will be.
  4. The documents and the names of the witnesses that will be relied on are given to the employee before the hearing and in good time.
  5. Disciplinary proceedings against the employee are commenced.
  6. The evidence an employer has against the employee is presented to them in the presence of a colleague or representative of their choice.
  7. The employee is given a chance to challenge the evidence and present their case.
  8. If the evidence given by an employee is not sufficient to justify their absenteeism, the employer can make the decision to terminate their employment.

How to Handle an Employee who has Deserted/Absconded Duty

Desertion can be defined as the willful and unjustified abandonment of a person’s duties. There are situations where an employee’s absenteeism persists for a long period of time, leading to the presumption that they might have deserted their duties. In such cases:

  1. An employer must take reasonable steps to find out the whereabouts of the employee and,
  2. Instruct them to resume their duties, failure to which, disciplinary proceedings will be commenced against them.
  3. If the employee’s absence still continues, the employer should give them a notice to show cause why their employment should not be terminated for unauthorized absenteeism.
  4. If the employee:

The employer may terminate the employment services of the employee, for unsanctioned absenteeism.

What does this Mean to an Employer?

It is upon the employee to show up to explain their absence from duty because their absence could be for justifiable reasons like natural calamities or sickness. In instances where an employee deserted work because of ill health, the employer is advised to reconsider the termination decision. In such instances, the employer should be flexible with their organizational deadlines and disciplinary rules since the desertion and lack of communication was justified.

Conclusion

Following the procedure as set out in the Employment Act 2007 is important, otherwise, employers risk the cost of compensating employees for unfair termination of employment. In cases where an employee was summarily dismissed for absconding duty, the Court requires an employer to show that the matter was conclusively addressed through the employer’s internal disciplinary mechanisms.

Since desertion is a unilateral act of abandonment, the contract cannot end the employment relationship until the employer acts on it. The employee who deserts employment does not dismiss himself, this is the decision of the innocent party.

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