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.