It happens quite often that an employee gets arrested for alleged criminal activities and/or is found guilty of criminal activity and ultimately incarcerated. Some employers then erroneously deem the employer/employee relationship to be automatically terminated. Unfortunately, an employee does not dismiss himself should he be incarcerated.
It is no employer’s wish to be associated with a criminal employee and/or any criminal activities, but even if your disciplinary code warrants a dismissal, the correct procedure must be followed.
There is a general “philosophy” that arbitrators at the CCMA and Bargaining Councils should protect the jobs of employees and as such, it is sometimes a very difficult prospect to terminate the services of an undesirable employee.
Unfortunately, this liberal philosophy is followed by arbitrators and as such employers should safeguard themselves from unwanted repercussions by ensuring that terminations/dismissal are both substantively and procedurally fair.
The Labour Appeal Court is of the opinion that an employee must be given the opportunity to state his or her case before being dismissed and the cause of incapacity that results in a dismissal does not have to be confined to ill health, and it must be substantively and procedurally fair.
It is therefore recommended that you obtain proper advice before dismissing an incarcerated employee due to the complex legal principals prevailing. The fairness of a dismissal for incapacity will depend on the facts of each case.
Jacques du Toit
Dispute Resolution Official – Bethlehem