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Case study:

Simon did not report for duty and did not inform the employer of his whereabouts. Upon investigation the employer learned that Simon was arrested by the police for theft and is in custody awaiting trial.

Absenteeism, or when an employee takes a wilful decision not to attend work or not to report for duty on time, is the most common form of misconduct in the workplace. However, what happens when an employee is absent from work because he or she is in jail for a criminal offence unrelated to the employer’s business?

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No fault absenteeism

When an employee is arrested and jailed for a criminal offence committed outside the workplace, absenteeism will not be an intentional decision by the employee and will be regarded as ‘no fault’ absenteeism. The arrest and incarceration are caused by a supervening impossibility to perform the work the employee was hired to perform, which cannot be attributed to either the employee or the employer.

In terms of The Code of Good Practice: Dismissal, an employee can be dismissed on three accounts, namely misconduct, incapacity (poor work performance or medical disability) and operational requirements (economical, technological or structural reasons). Incapacity is a ‘no fault’ dismissal which is not only limited to ill health or injury – incarceration can also constitute incapacity.

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Meeting workplace obligations

An employee has a number of obligations under common law which he or she must meet. These obligations exist even if they are not specifically stated in the employment contract, namely:

  • To provide the employer with his or her labour (to be at work).
  • To obey reasonable and lawful instructions.
  • To act in good faith and to protect his or her employer’s interests.
  • Not to commit misconduct (to behave properly according to the accepted norms of society).
  • To perform his or her duties (to work in a satisfactory manner).

It cannot be expected from an employer to keep a position open and available to an arrested employee for an indefinite period, especially where the employee holds a key position within the business.

When an employee is incarcerated he or she contravenes the most important obligation in the employer-employee relationship, which is to provide the employer with his or her labour. This directly affects both the operational requirements of the employer and the employment relationship.

Employees who are unable to perform at the required standard have a huge impact on a business’s normal operations, as most employers do not have the luxury of spare capacity concerning their workforce to compensate for this deficit.

Read here on what to do when a worker ignores a court order.

Grounds for dismissal

The Labour Court has found unequivocally in the matter of First National Bank Ltd vs Commission for Conciliation, Mediation and Arbitration and Others (2017) 38 ILJ 2545 (LC) that in circumstances where an employee fails to meet a legal requirement or standard in order to perform their employment functions, their subsequent dismissal would originate from the employee’s failure to perform (incapacity), and not from the operational requirements of the employer’s business.

It cannot be expected from an employer to keep a position open and available to an arrested employee for an indefinite period, especially where the employee holds a key position within the business. Depending on the potential indefinite length of absence, incapacity would be the appropriate means of terminating the employee’s employment. Employers should take note not to punish an employee on mere suspicion of unproven allegations.

When dismissing an employee on any grounds, it is paramount to follow the correct procedure for the type of dismissal, otherwise it can be classified as an unfair dismissal. A dismissal can be substantively unfair if there is no fair reason for the dismissal and procedurally unfair if no proper procedure is followed.

In the event of an employee being incarcerated it would mean that the employer has to deliver a notice to the employee at the place where the employee is being incarcerated, as well as provide the employee at least an opportunity to state the case, albeit by way of written representations. – Abrie Bronkhorst, senior legal advisor, LWO Employers Organisation