An imprisoned employee is unable to fulfil his or her contractual obligations in terms of the employment contract. But is this a sound basis for dismissing the employee?
It was decided in a recent decision of the Labour Court (Trident Steel v CCMA), that an employer cannot simply dismiss someone who was imprisoned for something that was not work-related. The employee in this case was dismissed for absence from work without leave for a month, following a disciplinary hearing held by the employer in his absence. The employee’s supervisor at that stage knew that the employee had been arrested. However, no enquiries were made from the employer’s side to gather further information.
When the (now ex-) employee reported for duty after his release from prison, the employer conducted a new hearing. The employee’s version was that he had been unable to inform the employer of his whereabouts during his time in prison. The employer rejected his explanation and confirmed his dismissal. The CCMA found the dismissal to be procedurally and substantively unfair. He was reinstated retrospectively from the date of dismissal. The employer took the matter on review to the labour court.
The court agreed with the arbitrator’s reasoning that the hearing was procedurally unfair because the employer had dismissed the employee in his absence, well-knowing that he was in prison. He had also provided a reasonable explanation for his failure to keep the employer informed about his whereabouts, namely that no-one had visited him in jail and that he had had no money for bail. The employee’s absence from work and his failure to inform the employer of his whereabouts was therefore not wilful.
In these circumstances, it could not be said that the employee’s absence from work was serious enough to warrant dismissal. The employer furthermore failed to consider the employee’s disciplinary and service record: he had been employed for twelve years and had a clean record. The real reason for dismissing the employee was found to be the fact that his position had been filled while he was in prison and not his absence as such. This was confirmed by the fact that the employer had in fact offered to re-employ him in the event of a post becoming available in future. This was a clear indication that the employment relationship had not been destroyed.
The labour court upheld the arbitrator’s award of compensation for unfair dismissal.
In the light of this decision, what should employers do in such cases? It would be advisable to do the following:
- Try to establish the employee’s whereabouts and circumstances.
- If the employee has a lawyer representing him or her in the criminal or civil case, stay in touch with that person.
- While in prison, the employee is not entitled to pay (‘no work no pay’).
- Try to replace the imprisoned employee on a temporary basis until he or she returns to work or until it is clear when the employee will be returning to work.
- If the employee is likely to return soon, the only penalty should be no work, no pay, unless the employee had no valid excuse for not informing the employer of his whereabouts. The employer's normal disciplinary rules should apply in this instance.
- On the other hand, if the period of imprisonment is too long in the light of genuine operational requirements, consider retrenching and replacing the employee for operational reasons. You will somehow have to consult with the employee, either in person, in writing, or via a legal representative or family member.
- If the employee can easily be replaced, but cannot be kept in service indefinitely during his or her absence, and if there is uncertainty about when he or she will return, a disability or incompetency process can be considered.
Of course, if the employee is imprisoned for something that is work-related, the employer may take disciplinary action. A disciplinary investigation should be held. Although the employee may not be able to be present, the employer will need to find a way of getting the employee’s version of events before a decision is taken to discipline or dismiss. Again, it would be useful to work through the employee’s lawyer or a family member, if the employer is unable to obtain the employee’s version in person.
Ramula Patel en Barney Jordaan of Maserumule Employment Consultancy (Pty) Ltd for www.labourwise.co.za
www.labourwise.co.za is an on-line labour relations service aimed at assisting employers with the implementation of effective labour relations. They can be contacted via the website or firstname.lastname@example.org.