When employees take permanent vacations

The ‘silly season’ has arrived and most employees are counting down the days until their annual leave begins in mid- to late- December. Unfortunately, December and January can be extremely challenging from a human resources perspective.

Often, employees fail to return to work on the day that they are due back after their annual leave. In terms of the common law, an employee has a duty to enter into and remain in service, other than during authorised periods of leave. If an employee is unable to return to work after a period of annual leave, the employee can reasonably be required to inform the employer of his/her whereabouts and the reason for the absence from work. However, this requirement is often not fulfilled and the employer is required to investigate the employee’s absence from work and the reason for the absence.

An employee’s failure to return to work following annual leave does not necessarily warrant dismissal. The reason for the employee’s absence should be established first. Once this has been done, the employer can determine the action to be taken.

Our law draws a distinction between absenteeism, abscondment and desertion. Absenteeism relates to a short period of unauthorised absence from work. Abscondment is unauthorised absence from work for an unreasonably long period of time. Desertion involves an employee who has left the employer’s employment or failed to return to work with a clear intention of not returning to work at all. The intention of not returning to work must be apparent from the employee’s actions. If the employee has an intention of returning to work at some point, then he/she will not have deserted but rather simply have been absent from work or absconded, depending on the duration of the absence.

In instances of absenteeism and abscondment, an employee must be afforded a hearing prior to his/her employment being terminated (other than in exceptional circumstances). The employee should be notified of the disciplinary hearing and cautioned that the hearing will continue in his/her absence if he/she elects not to attend the hearing. In the event that the employee fails to attend the disciplinary hearing and depending on the reason for the failure to attend, the hearing can continue in the employee’s absence and a decision can be made.

In some instances, the facts may indicate that the employee has in fact deserted. Examples of facts indicating desertion include the employee relocating/moving to another town or province, or the employee taking up employment with another employer. In a case of desertion, it is advisable, at minimum, for the employer to address a letter to the last known address of the employee to inform the employee that the employer is of the view that he/she has deserted and that his/her employment will be terminated on a specified date should the employee fail to return to work or to contact the employer by a stipulated deadline. If the stipulated deadline is not complied with by the employee, the employee’s employment will be terminated.

In every instance of an employee failing to return to work following annual leave, the employer should investigate the matter before taking any action, as this will determine what process is to followed by the employer.