Dealing with AWOL

What happens when an employee does not turn up to work and no message is received from them? Do employers have the right immediately to dismiss them?

The answer for most jurisdictions around the world is “no”. In the US, for instance, the Fair Work Act 2009 is silent on what is called “work abandonment”. Case law, however, indicates that the unauthorized absence must be extensive and that reasonable steps must be taken by the employer concerned to ensure that the absence was not for “reasonable cause”.

When an employee does not attend work when they are due to do so it could be for reasons outside their control – such as a serious accident, illness, overdose or prescribed drug interaction that leaves them unconscious, because they got lost on a walking holiday in a remote area, suffered from intense emotional distress due the loss of a close relative, feared a work colleague or had been arrested by the police. However, it could equally be because they have another job or are just feckless. Unless the employee can be contacted it is difficult to pre-judge the situation.

Making contact is essential too on welfare grounds as the employer may be the first to become aware of a problem – such as a severe illness that disables the employee. If the company is aware of a debilitating condition, such as epilepsy or diabetes, then the employee is at serious risk, especially if they live alone. That is why a call to their next of kin, or even the police may be appropriate before it is too late.

In the UAE Article 120 (j) of the Federal Law No. 8 of 1980 regulating Labour Relations states: “An employer may dismiss a worker without notice if the worker absents from his work without a valid reason for more than 20 non-consecutive days, or more than seven consecutive days in a year.” In the context of immigrant workers there is also provision for issuing an “escape report” after seven days absence. Even so, attempts need to be made to contact the employee and discover the reason for absence before dismissal goes ahead.

In South Africa case law indicates that the unauthorized absence may be even shorter. In Jacobs / JDG Trading (Pty) Ltd [2004] 9 BALR 1045 (P) the employee was dismissed for being absent without leave for five working days. The case found that absence without proven valid reason amounts to unlawful absenteeism. The fact that they did not inform their employer was regarded by the court as secondary to that act.

In the UK the Employment Appeals Tribunal (EAT) has heard a case where the unauthorized absence was for just two days (Zulhayirv JJ Food Service Limited). However, although an employment tribunal had found this amounted to “self dismissal”, the EAT disagreed. The case had involved an individual who had changed their address without informing their employer. Moreover, for dismissal to take place not only is it necessary for the employee to act in a repudiatory way in respect to their employment, but their employer must act in response to such conduct by handling it within their disciplinary policy. In any event it cannot be automatically viewed as gross misconduct until relevant facts are known.

To assist employers deal with ‘absence without leave’ (AWOL) we have drawn up a model policy that may be viewed here.

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