This case deals with whether a South African employee can be fired after being arrested

South African employers are increasingly confronted with absenteeism due to the arrest of their employees.

While in most instances the alleged criminal misconduct is unrelated to the business of the employer, an arrest can directly impact both the operational requirements of the employer and the employment relationship, says Tanya Mulligan of Cowan-Harper-Madikizela Attorneys.

She highlighted a case where the Labour Appeal Court (LAC) had to determine whether the employer was legally entitled to terminate the employment of an employee who had been arrested for allegedly committing an armed robbery.

“In this instance, the employee had been absent from work for approximately 150 days, whereafter the employer dismissed the employee for incapacity by simply delivering a letter of termination to the police station where the employee was being detained,” she said.

“The LAC, in our view, correctly found that it would not be reasonable to expect employers to keep a position open and available to an arrested employee for an indefinite period.

“This is particularly so where the employee holds an important or key position within the employer’s business.

“Accordingly, the LAC held that dependent upon the potential indefinite length of absence incapacity would be the appropriate means of terminating the employee’s employment.

“Procedural fairness must still, however, be adhered to and the employee must be provided with an opportunity to state his case – albeit by way of written representations,” she said.

Absenteeism vs operational incapacity

The matter was then referred to the Supreme Court of Appeal where it pointed out that incapacity indeed included circumstances where an employee had been arrested i.e. operational incapacity.

The decision to conduct an incapacity enquiry in circumstances such as these is however dependent upon the length of absence and the position of the employee, said Mulligan.

She added that employees may not be punished merely on suspicion of unproven allegations, and where temporary arrangements can be made to fulfil the employee’s function, this should be done.

“Irrespective of whether an employer considers it appropriate to conduct an incapacity hearing, it is important to remember that an employer’s obligation to pay an employee’s salary is suspended upon arrest,” she said.

Notification should be sent to the employee without hesitation.

Operational incapacity, Mulligan stressed, should not be conflated with absenteeism, which is a form of misconduct.

“Incapacity is a ‘no-fault’ dismissal caused by a supervening impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer,” she said.

“Incapacity is not limited to ill health or injury and accordingly, incarceration can constitute incapacity.”


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This case deals with whether a South African employee can be fired after being arrested