Ernest Mabuza
9 October 2008
Johannesburg — Dismissing an employee who has been incarcerated and fails to come to work is not as straightforward as it seems, and employers need to ensure that the employee is given a fair hearing before being dismissed, says a lawyer specialising in labour and employment law.
Sibusiso Gule, a director at law firm Deneys Reitz, said the imprisonment could be on a suspicion of committing an offence, or the detained person might not be granted bail pending the trial. In some instances, bail would be granted after a long period of detention, while in others the person concerned might not be able to afford bail.
"An employer in those circumstances is usually faced with a difficult decision about whether to terminate the services of the employee, and, if so, what the reason for the termination would be, and what procedure should be followed.
"Employers often get it wrong," Gule said at a labour seminar this week. He then looked at cases which showed the incorrect approach taken by some employers.
In one, an employee was dismissed for operational incapacity due to his absence from work. He was on suspicion of robbery from March 27 to April 10 in 2006. He returned to work and was arrested again for robbery on May 20, 2006. He telephoned his supervisor from the police cells and his sister also notified the company of his arrest. Ten days later, he was dismissed in his absence.
On his return to work, a second disciplinary inquiry was held at which the employee was charged with being absent from work without leave and failing to inform his supervisor of his whereabouts. He was dismissed again and it was justified on the basis of operational incapacity.
The Commission for Conciliation, Mediation and Arbitration found that absenteeism was a disciplinary offence and could not be treated as an operational incapacity.
Gule advised employers to look at measures short of dismissal -- employing someone temporarily, especially if the position of the employee was not a key one -- which would necessitate dismissal after a few days . If there was no alternative but to hire another permanent employee, the jailed employee had to be consulted before terminating his services for operational requirements.
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