Actual cases

End Up in Jail. You Could End Up Without a Job

What did a Labour Court say?

Employers sometimes face the practical dilemma of initiating disciplinary action against employees who cannot report for duty owing to circumstances beyond their control. For example, where an employee is incarcerated while awaiting trial when charged with a criminal offence. The incarceration of an employee will typically have a direct impact on their employment as the employee in question would be restricted from performing their duties for extended periods as criminal trials sometimes take years to conclude. 

This raises questions regarding the employee's right to be heard and the employer's obligation to ensure that any sanctions imposed on the employee are in line with labour laws. It is difficult to provide a universal answer and each matter will be determined by its unique circumstances. The below actual cases can provide some clarity on the topic. 

   In Khanye v Auditor General of South Africa (2024) 5 BALR 530 (CCMA), Mr Khanye could not report for work as he was arrested and incarcerated for almost 10 months. Upon his arrest, he requested his investigating officer to notify his employer of his arrest and explain that he did not have access to his phone. To accommodate the bail procedure, the employer granted him three days' leave in accordance with their leave policy. Bail was denied and Mr Khanye failed to establish further contact with his employer until he was released. He was suspended for unauthorised leave, which was followed by his dismissal. 

Mr Khanye challenged the dismissal and argued that his extended absence from work was the result of a “supervening impossibility of performance” (meaning that he could not perform his duties due to unforeseen circumstances). He felt that his incarceration should have been regarded as temporary incapacity, which would entitle him to leave for the duration of his incarceration. The employer argued that Mr Khanye's failure to make further contact after his bail application was denied justified his dismissal due to the leave policy only allowing authorised leave if the employee informs the organisation of their absence ahead of time.   

The Commission for Conciliation, Mediation, and Arbitration (“CCMA”) noted that courts have previously deemed incarceration to be a form of incapacity, that incarceration can be a supervening impossibility to render services and that employers should treat dismissal as a measure of last resort by implementing alternative solutions, such as temporary replacement while an employee is incarcerated. Where there are no alternatives to dismissal, the employer must follow the legal procedures for a fair dismissal. 

The CCMA determined that the employer failed to establish that Mr Khanye's extended absence was without good cause and they failed to consider alternatives to dismissal. The dismissal was deemed unfair and Mr. Khaye was reinstated. 

In another case, the employee's dismissal was considered fair. In Ndzeru v Transnet National Ports Authority and Others (2023) (C369/2020), Mr Ndzeru requested leave for five days, but only one day was approved by the employer. In spite of this, he took more than one day. While on leave, there was an alleged attempt to hijack him, which resulted in him shooting two people in self-defence. The employee was subsequently arrested and incarcerated with his bail being denied. While incarcerated, he did not contact his employer to advise them of his detention. The employer only became aware of the employee's detention through its own inquiries after the employee had not reported for duty for several weeks. 

The employer instituted incapacity proceedings and sent a notice of the hearing, setting out the employee's rights, to his spouse. The hearing continued in his absence, although he was represented by a trade union member, and he was dismissed for not performing his duties for almost two months. 

The employee approached the bargaining council to challenge his dismissal on grounds that the incapacity hearing was procedurally unfair as he was not afforded the opportunity to state his case and was refused a post-dismissal hearing. However, the bargaining council was of the view that his dismissal was fair. 

The matter went to the Labour Court and it was held that there is no automatic right to a post-dismissal hearing in cases of incapacity due to incarceration. The Labour Court further held that post-dismissal hearings would likely be held in cases where the employer neglected to inform the employee that a disciplinary hearing would proceed in their absence, or where the post-dismissal hearing was provided for in the employer's disciplinary code. If there is no certainty about when an employee will return to work, an employer cannot be expected to wait indefinitely. Disciplinary hearings may be conducted in the employee's absence provided that the employee is permitted to make representations. In this case, the employee's failure to articulate the reason for claiming that his incapacity hearing was unfair meant that there was no need for a post-dismissal hearing. The Labour Court agreed that the dismissal was fair. 

The above cases highlight that employers can dismiss employees for absenteeism when they are incarcerated for long periods. However, the correct disciplinary proceedings must be used and dismissal must be as a last resort. On the other hand, the employee must take all measures possible to keep the employer informed of the absence and not just be quiet about it. The employee may be requested to make written representations, an incapacity inquiry may be held at the place of incarceration, or the employee's representative may make written submissions on the employee's behalf or represent the employee at the hearing.

Did you know…It is possible for a disciplinary hearing to continue in the absence of the employee.