- Coast & Country Sales dismissed an employee who was unable to work because of serious medical problems, claiming he had absconded.
- The employee remained in contact with the company and repeatedly explained his condition and efforts to obtain medical documentation.
- The Labour Court in Cape Town upheld the finding that the dismissal was substantively and procedurally unfair and ordered the employer to pay legal costs.
An employer cannot simply treat an employee as having abandoned his job because he is absent from work and the medical documentation provided does not satisfy management.
The Labour Court in Cape Town has reaffirmed that abscondment requires evidence that an employee intended to abandon the employment relationship, while employers must still follow a fair disciplinary process before dismissing an employee.
In a judgment handed down on 11 November 2026, Judge R Lagrange dismissed a review application brought by Coast & Country Sales (Pty) Ltd against a Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award in favour of former employee Shaun Zachary Baard.
Commissioner Marieke van Rooyen had found that Baard’s dismissal was both substantively and procedurally unfair. She ordered the company to pay him R46 800 in compensation, equivalent to 12 months’ remuneration.
The company approached the Labour Court seeking to have the arbitration award reviewed and set aside. However, Judge Lagrange found that the commissioner had properly assessed the evidence and reached a reasonable decision.
Employee’s medical problems and absence
Baard joined Coast & Country Sales in December 2017 as a beverage merchandiser, earning R3 900 a month. His duties involved physically demanding work, including stacking and packing beverage crates and pallets at retail outlets.
Between December 2017 and September 2018, he sustained several workplace injuries to his right wrist and arm. He underwent surgery in November 2018 and continued receiving physical therapy.
His health problems worsened in May 2019 when he collapsed on his way home from work, experiencing severe spinal pain and an inability to move both legs. He was admitted to Wesfleur Hospital, where a doctor issued a medical certificate booking him off work from 15 May to 16 June 2019.
He was later transferred to Groote Schuur Hospital for neurological assessment and an MRI scan. Although the scan showed no spinal cord abnormality, doctors recorded acute back pain and weakness in both legs. The employer became suspicious of his condition because the MRI scan did not show a spinal cord injury. It believed he was fabricating or exaggerating his illness, despite not obtaining an independent medical opinion.
In June 2019, an intern doctor at Wesfleur Hospital diagnosed Baard with Major Depressive Disorder and suspected that his physical symptoms were related to psychosomatic effects. The doctor booked him off until 19 July 2019. However, the company’s human resources official, M Mostert, rejected the medical certificate and instructed him to return to work.
Employer abandoned disciplinary hearing
The company initially instituted disciplinary proceedings against Baard in June 2019. He faced allegations of unauthorised absence, displaying a rude attitude towards a retail client and bringing the company’s name into disrepute.
His representative, retired attorney JW Maree, requested a postponement, explaining that Baard was bedridden, unable to walk and in severe pain. The employer offered to arrange transport and two people to lift him into a vehicle so that he could attend the hearing. Maree explained that Baard was unable to sit upright and would refuse to be moved by strangers.
The hearing was postponed but did not proceed on 19 July 2019. The employer did not conduct it in Baard’s absence. Instead, on 25 July 2019, the company issued a final return-to-work notice giving him seven days to provide an acceptable medical certificate or an expected date of return. It warned that failure to comply would result in his absence being treated as desertion and his employment being terminated.
Baard responded on 31 July, explaining that he had been without income for months and could not afford mobile data to access the company’s emails. He also explained that he was trying to secure an appointment with a psychologist at a public healthcare facility but faced difficulties because of the waiting list.
He attached clinical notes from his physiotherapist indicating that anxiety and depression might be contributing to his physical mobility problems. The company rejected the documents as insufficient. On 13 August 2019, it terminated his employment without conducting a disciplinary hearing, recording the reason for dismissal as abscondment.
Absence does not automatically amount to abscondment
In reviewing the arbitration award, Judge Lagrange emphasised that an employer must establish that an employee intended to abandon the employment relationship before dismissing them for desertion or abscondment.
The judgment distinguished between ordinary absenteeism, abscondment and desertion. While abscondment involves an absence long enough to justify an inference that an employee will not return, desertion requires an indication, either expressly or through conduct, that the employee does not intend to return.
The judge referred to established labour law principles that an employee’s absence alone does not prove an intention to abandon employment.
In this case, Baard remained at his known residential address in Atlantis and maintained regular communication with the employer through WhatsApp and email. His representative also continued communicating with management about his medical condition.
Furthermore, Baard responded within the seven days specified in the employer’s final notice, explaining his circumstances and efforts to obtain further medical assistance. Judge Lagrange found that the employer’s real concern was that the medical information supplied by Baard did not satisfy its human resources department.
The judgment stated that an employee who was actively communicating with management, explaining his physical limitations and seeking assistance with his injury paperwork could not reasonably be regarded as having abandoned his employment contract.
The judge also rejected the employer’s reliance on the absence of a structural spinal abnormality in the MRI scan. The scan did not disprove mechanical back pain, functional leg weakness or psychosomatic immobility.
The employer had not called any medical experts to challenge the hospital records and relied instead on assumptions made by its human resources officials, who were not medical professionals.
Employer should have followed incapacity procedures
Judge Lagrange further agreed that the employer had used the wrong procedure in dealing with Baard’s medical condition.
Where an employee is unable to work because of illness or incapacity, the appropriate approach is to follow an incapacity process to establish whether the condition is temporary or permanent and whether reasonable accommodation is possible.
The judgment also addressed the employer’s argument that a disciplinary hearing would have been impractical because Baard had indicated that he could not be transported to the company’s premises.
The judge distinguished the matter from a previous decision involving the South African Broadcasting Corporation, where an employee had effectively disappeared and made it impossible for the employer to engage with them.
Baard’s circumstances were different because his employer knew where he lived and remained in regular communication with him. Judge Lagrange found that the company should have proceeded with the disciplinary enquiry it had already initiated, even if it had to conduct the proceedings in his absence.
The judge held that the employer could not use the return-to-work notice as a substitute for a disciplinary hearing addressing the specific allegation of abscondment.
Compensation award and costs upheld
The Labour Court concluded that the commissioner had correctly assessed the evidence, applied the relevant legal principles and reached a reasonable decision. Judge Lagrange dismissed the review application and ordered Coast & Country Sales to pay Baard’s legal costs on Scale A.
The judge noted that Baard was a low-earning employee who had already been awarded R46 800 in compensation for his unfair dismissal. Requiring him to absorb the legal costs of defending the arbitration award would undermine the relief he had received.
The R46 800 compensation award therefore remains in place.
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