May an employer dismiss an arrested or jailed employee?

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When an employee is arrested and put in jail there are numerous reasons for the employer’s wish to be rid of the employee. These reasons may include:

  • The employer feels fearful of the having a convicted felon at its workplace. The employer or employees could be at risk if the jailed employee returns to work and has not been rehabilitated in prison
  • Employers do not wish the names of their businesses or organizations to be associated with criminals
  • The person who replaced the employee while he was in prison may be seen as an honest and more effective employee
  • The employer’s disciplinary code may state that a criminal conviction merits dismissal.

Employers will be making a big mistake if they automatically assume that the conviction of an employee gives the employer the unlimited right to terminate the employee’s services or to treat the employee as a deserter who has "fired himself’.

While this approach was often successful pre-1996 the new labour dispensation makes it much more difficult for an employer to get rid of an undesirable employee. The philosophy that labour law must protect the jobs of employees has been taken to heart by CCMA and bargaining council arbitrators.

A number of case decisions reflect this liberal philosophy. In the case of Mofokeng vs KSB Pumps (2003, 12 BALR 1342) the employee was imprisoned and thereafter returned to work but the employer did not want him back and paid him off apparently on the grounds that he had absconded. However, the arbitrator decided that abscondment occurs when the employee leaves his employ without the intention to return. As the employee had returned to work immediately on his release from prison he had done nothing to give the impression that he was not intending to return. The arbitrator also ruled that the fact that the employer had already replaced the absent employee was of no consequence. The employer could have employed a temporary replacement. The dismissal was therefore unfair and the employer was ordered to pay the employee compensation equal to five months’ remuneration.

In Visser vs Woolworths (2005, 11 BALR 1216) the employee was arrested on a charge of theft from a department store owned by a competitor of the employer. Before she was convicted the employer dismissed her due to her arrest on the grounds that she had a number of subordinates who were supposed to look up to her and that she could no longer be trusted.

The arbitrator recognised the employer’s right to dismiss an employee if the trust relationship has been irrevocably damaged. However, as the employer had failed to prove that the employee was guilty of theft and had not even attempted to do so, it could not show that the employee could not be trusted. The dismissal was found to be unfair and the employer was ordered to pay the employee the equivalent of eight months’ remuneration.

In Langa vs CBC Laser Fab Engineering (2007, 6 BALR 526) the employee was arrested for drunken driving and was given a six month prison sentence with the alternative of a fine. Part way through serving his sentence he managed to pay the fine and later returned to work. However, he was sent home and told that there was no longer a job for him.

After he referred a dispute to the bargaining council his employer reinstated him and held a disciplinary hearing. There he was fired for absence without leave. The employer argued that, while the employee had been unable to attend work while in jail he could have returned to work immediately on his release. His failure to do so constituted absence without leave.

The arbitrator found that:

  • The employee should have been forgiven for failing to return to work because serving a jail term "could be disruptive' to him
  • The employee’s absence had not caused any inconvenience for the employer
  • The employment relationship had not been seriously harmed by the employee’s conduct.
  • The disciplinary enquiry had been a sham and had been held in an attempt to justify the original dismissal.
  • The dismissal was unfair and the employer was required to reinstate the employee with retrospective effect.

While it is possible for employers to dismiss arrested employees and still win at the CCMA this can only be done if the employer understands the complex legal principles prevailing. Employers who wish to avoid ending up "in the dock’ should therefore get advice from a reputable labour law expert before firing employees who have been arrested.

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to:
. This article first appeared in The Star.

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