Absconding vs Absenteeism in South Africa: The Difference and the Process

This guide is for HR and line managers dealing with an employee who has stopped coming to work. It covers the legal difference between absconding and absenteeism, how many days to wait, the steps to follow, what to do when the employee comes back, and the cases that set the rules. If you need the letters, use our absenteeism warning letter templates, which include an instruction-to-return letter for an employee who has absconded.

Absconding vs absenteeism: the short answer

What the courts say: intention is the test

In Khulani Fidelity Services Group v CCMA (2009), the Labour Court described desertion as absence without authorisation with the intent to stay away permanently. It said the intent can usually be inferred from the circumstances, that a short absence may not be enough, and that a prolonged absence may be enough, especially where the employee has deliberately cut off contact with the employer. (Khulani Fidelity v CCMA [2009] ZALC 17)

The same judgment relies on SABC v CCMA, which drew the line this way: unexplained absence is no more evidence of desertion than it is of ordinary absence without leave. How the employer finds out whether the employee intends to return is the critical question.

In Msibi v CCMA (2017), the Labour Court added that employees must be called upon to show cause why their absence should not be treated as an intention not to return. Until that intention is established, the employee is simply absent without leave. (Msibi v CCMA [2017] ZALCJHB 245)

Practical meaning: do not decide on day 3 that someone has absconded. Decide that you need to find out, and build a record that shows you tried.

Is abscondment a dismissal?

Yes, once you act on it. Khulani explains that desertion does not end the contract by itself. The employer's acceptance of the repudiation ends it. The court also cites SACWU v Dyasi (LAC, 2001), where accepting a repudiation amounted to a dismissal when the employee again tendered their services. (Khulani Fidelity v CCMA)

Because it is a dismissal, the employee can refer an unfair dismissal dispute to the CCMA or the relevant bargaining council within 30 days of the dismissal (Labour Relations Act s191(1)(b)(i)). Under the LRA, the employer must then prove the dismissal was fair. Writing "contract terminated automatically" in the file does not change this. The question at arbitration is still whether the employee intended not to return and whether you followed a fair process.

How many days before treating absence as abscondment?

There is no fixed number of days in the LRA, the BCEA or the Code of Good Practice: Dismissal for private-sector employers. Disciplinary codes set their own triggers. The cases show the range:

• In Khulani, the employer's system sent a telegram once an employee had been absent for more than four days.
• In Isikhonyane Cleaning Services v CCMA, the employer's code treated absence of more than five consecutive days without notifying the company as misconduct that could warrant dismissal. (Isikhonyane v CCMA [2015] ZALAC 122)
• In the public service, section 17(3)(a)(i) of the Public Service Act deems an employee who is absent without permission for more than one calendar month to be dismissed. This is quoted in full in Bonakele v Department of Health. (Bonakele v Department of Health [2025] ZALAC 34)

Treat your code's number as the point where the process starts, not the point where you conclude the employee has absconded. Three days of silence is a reason to send a letter. It is not, on its own, proof of an intention never to return.

The 2025 Code of Good Practice: Dismissal

On 4 September 2025 the Minister of Employment and Labour published a new Code of Good Practice: Dismissal (Notice 3470 of 2025, Government Gazette 53294). It took effect on publication and repeals the old Schedule 8 Code and the 1999 Code on operational requirements dismissals. (Code of Good Practice: Dismissal, 2025)

The new Code does not mention absconding or desertion specifically. The parts that apply are:

• Item 11 (fair procedure). Before dismissal the employee should usually be told of the allegations, preferably in writing, given a reasonable time to prepare and respond, allowed a fellow employee or union representative, and, where reasonably possible, allowed to use a language they are comfortable with.
• Item 11(6). In exceptional circumstances, where the employer cannot reasonably be expected to follow these steps, it may dispense with some or all of them, but it may have to justify that at the CCMA.
• Item 3 (small businesses). Small businesses are not expected to run time-consuming investigations or pre-dismissal processes. That does not remove the need to give an absent employee a chance to explain.
• Item 10 (consistency). Apply the same sanction you have applied to others in the same position.

Judgments decided before September 2025 refer to the old Schedule 8. The principles they apply to absconding (intention, a chance to explain, a fair sanction) are not changed by the new Code. For the wider legal picture, see our guide to South African labour law on absenteeism.

The absconding process, step by step

1. Day 1: try to make contact. Phone, SMS and WhatsApp the employee. Phone the emergency contact or next of kin on file. Ask colleagues if they have heard from the employee. Record every attempt with the date, time, number used and result.
2. Check for an explanation you already have. Look for a sick note handed to a supervisor or sent through a colleague, a leave application, a message to a team leader, or a known family emergency. In Khulani, the employee had sent a clinic certificate through a co-worker and reported for work the next day. The employer's abscondment finding failed.
3. Send a written instruction to return. Address it to the employee's last known physical address and email, and send a copy by SMS or WhatsApp. State the dates of absence, instruct the employee to report for duty or make contact by a set date and time, and state that if they do not, the company will consider holding a disciplinary hearing on unauthorised absence and on whether they have deserted. Keep proof of delivery.
4. If there is no response, issue a notice of disciplinary hearing. Send it the same way. Set the charges out clearly (for example, unauthorised absence from a given date, and desertion), give the date, time and venue, and give enough notice to prepare. State the right to be represented by a fellow employee or union representative, and that the hearing may go ahead if the employee does not attend.
5. Hold the hearing. If the employee does not attend, the chairperson should first confirm that notice was properly given, then hear the evidence of the absence and the contact attempts, and decide whether an intention not to return has been established and what sanction is fair. Record everything.
6. Send the outcome. Send the outcome to the same addresses. Include the reasons and the date of termination, and note the employee's right to refer a dispute.
7. Record the reason for termination accurately. In Msibi, the court noted that the employees lost their UIF benefits because the company had recorded abscondment on their UIF documents. Record the reason that the hearing actually found.

If your code or bargaining council agreement sets out a specific desertion procedure, follow it. The steps above are the minimum that the case law points to.

When the employee comes back

Before you have made a decision

Hear the explanation. Illness, arrest, a family crisis or a misunderstanding about leave can each explain a long absence. If the employee meant to return, it is not abscondment. The absence may still be misconduct (absence without leave, failure to notify), and you can deal with that through the normal disciplinary route. If the explanation is illness, consider whether it is an incapacity matter instead. Our guide on incapacity vs misconduct explains how to choose the route.

After you have terminated

If the employee returns after the outcome and offers to work, and you refuse, that refusal confirms the dismissal (SACWU v Dyasi, as cited in Khulani). Consider their explanation honestly. If it shows they intended to return and could not reach you, reversing the decision is often cheaper than defending it at the CCMA.

Even if the absence is proved, the sanction must be fair

In Isikhonyane, a supervisor was absent for more than three weeks during a strike that did not involve her bargaining unit. The Labour Appeal Court accepted she was guilty, but found dismissal unfair. She had about 11 years' service and a clean record, the employer had demoted (not dismissed) another supervisor for the same conduct, and there was no evidence that the relationship had broken down. (Isikhonyane v CCMA)

Public service: deemed dismissal is not automatic

Section 17(3)(a)(i) of the Public Service Act deems an employee who is absent without permission for more than one calendar month to be dismissed for misconduct. Section 17(3)(b) lets the executive authority reinstate the employee on good cause shown if they report for duty later.

In Bonakele v Department of Health (4 June 2025), the Labour Appeal Court set aside a nurse's deemed dismissal. The department knew where she was and why she was absent. It had barred her from the workplace and told her union it would discipline her. The court held that a deemed dismissal is not simply triggered when 30 days pass. The facts must support it, and the employer's conduct must show a clear intention to rely on it. Having chosen discipline, the department could not switch back. (Bonakele v Department of Health)

Check the current text of the Public Service Act and any amendments in force before relying on these sections.

Common mistakes that lose absconding cases

• Automatic termination. A system or clause that ends employment after a set number of days, with no chance to explain. Khulani is an example of how this goes wrong.
• Not using the contact details you have. Failing to call the number, email or next of kin on file weakens any claim that the employee could not be reached.
• Treating communicated absence as abscondment. If the employee told a supervisor or colleague where they were, they have shown an intention to return.
• Ignoring a sick note. A medical certificate for part of the period is evidence that the employee meant to return.
• Inconsistent sanctions. Dismissing one employee and demoting another for the same absence (Isikhonyane).
• Switching routes midway. Starting discipline and then claiming abscondment or deemed dismissal (Bonakele).
• Wrong reason on termination documents. This can affect the employee's UIF claim (Msibi).

Where Appsentia fits

Appsentia does not track unauthorised absence or run abscondment cases. It analyses sick leave from your payroll or HR data: how often each employee is off sick, when the absences fall, how the trend is moving, and how they compare with their department. See what Appsentia analyses.

That matters before a case reaches this point. Many absconding cases follow months of short, frequent sick absences that nobody discussed. An earlier return-to-work conversation is often the cheaper fix. When a case does go to a hearing, the employee's individual report gives you a dated sick leave history for the file.

Frequently asked questions

Sources

1. Department of Employment and Labour (4 September 2025). Code of Good Practice: Dismissal. Notice 3470 of 2025, Government Gazette 53294.
2. Labour Relations Act 66 of 1995, s186 and s191.
3. Khulani Fidelity Services Group v CCMA and Others (JR 783/07) [2009] ZALC 17 (3 February 2009), citing SABC v CCMA (2001) 22 ILJ 487 (LC) and SACWU v Dyasi [2001] 7 BLLR 731 (LAC).
4. Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017), citing SABC v CCMA (2002) 8 BLLR 693 (LAC).
5. Isikhonyane Cleaning Services v CCMA and Others (JA36/2014) [2015] ZALAC 122 (5 October 2015).
6. Bonakele v Department of Health (CA17/2024) [2025] ZALAC 34 (4 June 2025).

This article is general information, not legal advice. Check the current Labour Relations Act, the 2025 Code of Good Practice: Dismissal, your disciplinary code and any bargaining council agreement or sectoral determination that applies to you, and take advice on specific cases.