When an employee is imprisoned for having committed a crime, there could be more than one reason why the employer might want to terminate employment. The employer might feel that the nature of the crime is such that the employee has become unsuitable as an employee, or that the duration of the imprisonment is unreasonably long and the employee should be replaced. What are the principles involved and how should an employer approach the matter?

In a previous contribution we discussed the decision of the Labour Court in NUM & another v Samancor Tubatse Ferochrome in which it held that the dismissal of an employee who had been imprisoned for alleging committing a serious crime unrelated to his employment, could not be dismissed on the basis of incapacity. The court took a particularly narrow view of the circumstances that constitute ‘incapacity’ under the LRA and the Code of Good Practice: Dismissal, effectively limiting them to poor performance and ill health. This meant that unless the imprisoned employee’s actions impact on the work environment, an employer’s only recourse would be to terminate for absence without leave (if the employee’s whereabouts are not known) or for operational requirements (if the employer is aware of the employee’s imprisonment).

The Labour Appeal Court held in Samancor Tubatse Ferochrome v NUM & others that the Labour Court had erred by limiting the meaning of ‘incapacity’ in the manner that it did and that where an employer is aware of the employee’s imprisonment, it could consider terminating his/her services for incapacity. However, the employer must consider the following:

• Reasons for the incapacity and its extent: this presumably refers to the potential impact of the cause of the imprisonment on the employment relationship, e.g. an accounting officer who commits fraud outside his/her employment;
• Whether it is temporary or permanent, e.g. if the employee committed a crime for which a mandatory long-term imprisonment is prescribed, the incapacity is likely to be ‘permanent’ for all practical purposes. If, on the other hand, the employee is, or is likely to be, released on bail, the incapacity would be ‘temporary’;
• Whether alternatives to dismissal exist, e.g. hiring a temporary replacement. Keep in mind that the imprisoned employee is not entitled to pay during his/her imprisonment. In the Samancor case, the employee was highly skilled and the employer was not able to keep the position vacant or use temporary labour indefinitely.

What about procedural fairness? The employer is still obliged to give the imprisoned employee an opportunity to be heard before deciding to dismiss. This can be in the form of a letter to the employee, a visit to the prison, or communication through the employee’s legal representative, if any.

In summary, we would advise employers who become aware of the imprisonment of an employee, to take the following steps as soon as possible:

• Determine whether the employee’s conduct constitutes misconduct towards the employer (that is, whether it is work related, e.g. theft from the employer or assault on a fellow employee). If so, disciplinary action can be taken and you need not wait for the court proceedings to be completed. The employee is entitled to an opportunity of some sort to state his/her case before a decision is made.

• Determine the extent to which the nature of the crime committed has an impact on the employment relationship. Even where the transgression was not aimed against the employer or a fellow employee, it might still have a detrimental effect on the employment relationship, e.g. an accountant who committed fraud outside the context of the employment relationship..

• If you are aware of the employee’s imprisonment you need to establish as soon as possible where he/she is being held, for what, who the investigating officer is and whether or not the employee has legal representation. In the latter event, we would advise that you try to work with the representative in deciding on a way forward. The investigating officer, in the absence of a representative, should be able to provide you details of the case.

• Wait for the employee’s court appearance to determine whether or not bail will be granted. If so, the employee is entitled to return to work. Suspension with pay pending the outcome of the trial must comply with the normal requirements for suspension which include a good reason for it, e.g. a reason to believe that the person’s presence at work would pose an unacceptable risk to the employer or others. If bail is not granted, try to establish when the trial is expected to be completed. If this is uncertain or not reasonably possible for the employer to operate the position on a temporary replacement, a letter should be sent to the employee or his/her representative informing him/her that the employer is considering terminating the employee’s services for misconduct or incapacity, and asking the employee or the representative to provide reasons by a given date why it should not go ahead with such termination.

• Keep in mind that in a situation where the reason for the imprisonment does not have a direct impact on the employment relationship, the key requirements for substantive fairness is the duration of the employee’s absence and whether reasonable alternatives to dismissal existed.

Prof. Barney Jordaan of Maserumule Employment Consultancy for www.labourwise.co.za