The dismissal of incarcerated staff requires caution

Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees.  This also relates to the procedure employers should follow when an employee is arrested or detained by the South African Police Services for a lenghty period, after which they are released or fail to make bail.

The Labour Appeal Court (LAC) in SAMANCOR Tubatse Ferrochrome v MEIBC & others (Case No.JA57/08) addressed this conundrum providing some clarity.

In this particular case, the employee was arrested on suspicion of having committed an armed robbery.  He informed his employer of this development and remained in custody, and was therefore absent from work, for approximately 150 days.  The employer then dismissed the employee on grounds of incapacity in that “he was physically unable to tender his services”.

He was informed of his dismissal in writing by the employer, which was delivered to the employee at the Police station where he was being held.

On being released from custody, the employer held a post-dismissal hearing whereat it was held that the employer could not have been expected to put in place a temporary arrangement for such a lengthy period of time which would have enabled the employee’s position to have been kept open for him.

This was motivated by the fact that the employee held a key position (a furnace operator) and that the criminal case against the employee was still pending against the employee at the time of the post dismissal hearing.  In addition, this was the second instance in which the employee had been arrested and thus been absent from work.

At a subsequent arbitration hearing, it was held that the dismissal of the employee had been substantively unfair in that the employer had not taken proper account of the fact that the employee had no control over his incarceration and its duration.  In addition, the employee had not been afforded an opportunity to present his case prior to being dismissed.

The employer was then reinstated.

This finding was upheld on review at the Labour Court.

The LAC however adopted a different view to both the CCMA and the Labour Court.  The LAC held that the concept of ‘incapacity’ may indeed have application in cases of incarceration.  In such circumstances, an employer would be required to address the matter via an incapacity procedure.

This would entail assessing the extent of the incapacity including the temporary or permanent nature thereof and explore alternatives to dismissal.

Prolonged absence and the skilled nature of the employee’s position, as was the case in the LAC matter, would be compelling reasons warranting dismissal.  The LAC went so far as to confirm that it cannot be the case that “incapacity which is outside the control of the employee cannot be a cause of dismissal”.

However, incarcerated employees must be afforded an opportunity to state their case prior to, not after, being dismissed.  This could take the form of the incarcerated employee being invited to make submissions, if not in person, in writing, or via an appointed third party such as a family member or colleague.

It must be remembered that all employees must be afforded an opportunity to make representations to their employer, prior to any dismissal.

In the final analysis, as confirmed in the arbitration award in van Schalkwyk v Swissport South Africa (Pty) Ltd (case number WEGE1008-17),  “In light of (case law) should a key employee be incarcerated for a lengthy period the employer should consider either retrenchment or dismissal for incapacity.”

This award also noted that “It was stated in Trident Steel (Pty) Ltd v CCMA and others (2005) ILJ 1519 LC that dismissal for absenteeism while the employee was incarcerated for an offence not related to the workplace was unfair. It was further stated in Maloma v Stemmett NO [2010] ZALAC 7 the employee held a key position as furnace operator and was held in custody for 150 days. He was eventually dismissed. When the employee referred his case to the CCMA the arbitrator found the employee had been unfairly dismissed as the employee had no control over his circumstances. On review the court found that the incarceration of the employee was a factor beyond his control and that he was not the author of his own misfortune.”

So its clear, addressing arrested and incarcerated employees requires employers to proceed with extreme caution.  Dismissal is possible, but due process must be followed.

Can a resignation be withdrawn?

Can a resignation be withdrawn?

The courts, CCMA and Bargaining Councils are, on occasion, faced with cases which deal with the question of whether, or not, an employee has resigned, and if so, whether the employee was entitled to withdraw his or her resignation.

It can occur that an employee resigns, and thereafter attempts to withdraw the resignation, on grounds that they resigned unthinkingly, or that they have changed their mind, and no longer wish to do so.

This begs the question, may an employee change his or her mind, and if so, is the employer obligated to accept the employee’s change of heart?

To begin with, one must establish whether an employer is required to accept, or reject a resignation, or whether an employer has no obligation to do so?  Put differently, does a resignation become effective without acceptance by the employer, or is employer acceptance necessary to confirm the resignation?

In CEPPWAWU v Glass & Aluminium (2002) 23 ILJ 895 (LAC) and NUMSA obo Williams v Southern Shipyard (2003) 12 MENT 1774, the principle that resignation was an offer that gives an employer an election to accept the employee’s resignation, was accepted.  However, the most commonly held stance on this issue was upheld in the Labour Court judgment in Uthingo Management (Pty) Ltd v Shear NO & others (2009) JR2007, which held that it is not in fact necessary for an employer to formally accept an employee’s resignation.

The recent CCMA arbitration award in Dr. Lucky Ehimatie Asuelime v University of Zululand (Case number KNRB598-17) reiterated the principle that “resignation is a unilateral decision of the employee which does not require any formal acceptance from the employer”, continuing that “ … if our courts hold a view that the employer must accept and approve the resignation and keep the employee against his will for an indefinite period for whatever reason, that is a bad decision at law and it must be rejected”.  This sentiment has been paraphrased on occasion to mean that it would amount to a form of indentured labour if resignations were only ratified by the acceptance of the employer on every occasion.

Another take on this issue is whether an employer can be said to have dismissed an employee, after the employer refuses to accept the retraction of an employee’s resignation?  This question was addressed in the arbitration hearing at the Metal and Engineering Industries Bargaining Council of NUMSA obo Kau, Phillip v Scaw Metals (Case number MEGA45988).

In this case, the employee handed his written resignation to the employer; two days prior to submitting his resignation in writing, the employee had sent the employer an SMS stating “I have just tendered my resignation.  I hope you receive it as I am experiencing problems with my PC”.  Two days after having submitted the employer his written resignation, the employee informed the employer that he was ‘remorseful’ and had decided to retract his resignation.

His retraction was not accepted by the employer.  In essence, the employee was arguing that he had resigned “on the spur of a heated moment, and that the employer’s refusal to accept the retraction of his resignation, amounted to an unfair dismissal.

In this case, the Commissioner held that the employer was under no obligation to accept the employee’s retraction of his resignation, and that the refusal to do so did not result in the dismissal of the employee; on the contrary, the employee had simply resigned.  The Commissioner emphasised that case law supports the contention that, the test for resignation is that “an employee has to either by words or conduct, evidence a clear and unambiguous intention not to go on with his contract of employment” and that “to resign he has to act in such a way as to lead a reasonable person to the conclusion that he did not intend to fulfil his part of the contract”.

A further consideration is whether, or not, resignation per, for example an SMS, qualifies as a valid mode of communicating a resignation?  This was dealt with in the Labour Court matter of Mafika v SABC Ltd (2010), wherein the employee submitted his resignation per SMS, after which he sought to retract this resignation some weeks later, on grounds including the fact that his SMS did not constitute a valid resignation at it was not in writing.

The court disagreed, citing that a communication by SMS is a communication in writing in terms of section 12 of the Electronic Communications and Transactions Act 25 of 2002.

Our law has evolved to hold that resignation is a unilateral act, which does not require acceptance by the employer, and that once resignation has been communicated by the employee, it cannot be withdrawn without the consent of the employer.

So, what does this mean for employees?  Well, it’s quite simple.  Employee decisions to resign must be carefully thought through, in the knowledge that a change of mind will, in all likelihood, only be possible with the employer’s agreement.

Expired warnings can still justify dismissal

Expired warnings can still justify dismissal

Disciplinary procedures and codes, amongst other things, clarify the validity periods of varying degrees of disciplinary warnings (sometimes referred to as sanctions).

Validity periods vary from company to company; but typically verbal warnings are valid for three months, written warnings for six months, and final written warnings for twelve months.

The principle of progressive warnings is also long established, in the simple understanding that should an employee be found guilty of an act of misconduct the same or similar as that for which they have an unexpired, valid warning, the subsequent sanction will be progressively more severe.

All things being equal, warnings are no longer valid after the expiry date, and therefore cannot be referred to as an aggravating factor at a later date.

Put differently, if I am found guilty of late coming today, and a prior final warning for the same offence expired a month ago, I am in fact an employee with a clean, unblemished disciplinary record.

That said, there are occasions when expired disciplinary sanctions may be taken into consideration when contemplating the selection of a sanction, in certain circumstances; caution must however be exercised.

There is case law which support the fact expired warnings may be taken into consideration in certain circumstances.

The Labour Appeal Court case of NUM obo Selemela v Northam Platinum Ltd [JA25.11] held that “ … even if the final written warning had lapsed, the commissioner was obliged to take it into account and by not doing so she committed an irregularity”.

The judgment more especially noted that “Indeed, the employee’s written warnings, even after they have lapsed, may be taken into account, in determining the fairness of his or her dismissal where the employee concerned is found to have a propensity to commit acts of misconduct at convenient intervals falling outside the period of applicability of the written warnings”.

This reinforced the Labour Appeal Court judgment in Gcwensha v the CCMA & others [DA7/04] which held that “It must also be recalled that there was in existence a written warning dating from March the previous year with a twelve month duration.  The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded.  The employer is always entitled to take into account the cumulative effect of these acts (of misconduct) … to hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings”.

This suggests that warnings should be retained once they have expired.

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