South African employers often face situations where an employee cannot report for duty due to circumstances beyond their control.<\/p>\n
One of these ‘unforeseeable circumstances’ is incarceration, and a well-known labour dispute dealt with a furnace operator who was arrested on suspicion of having committed an armed robbery, explains Cliffe Dekker Hofmeyr’s Hugo Pienaar.<\/p>\n
“Ten days after his arrest, he received a letter informing him that he had been dismissed for incapacity.<\/p>\n
“The employee remained in custody for approximately five months and upon his release, referred an unfair dismissal dispute to the Bargaining Council,” he said.<\/p>\n
Judgement<\/strong><\/p>\n Following a number of reviews and appeal procedures between the Bargaining council and the Labour Courts, the Labour Appeal Court ultimately found that the dismissal was ‘substantively fair’.<\/p>\n This was because it was not reasonable to expect the employer to hold a position vacant for an indefinite period –\u00a0 especially as the position was integral to the organisation.<\/p>\n The court noted that the fairness of a dismissal, depends on the facts of the case before it. As such an employer should consider the reasons for the incapacity, the length of the incapacity (the period of incarceration) and whether there are any alternatives to dismissal available.<\/p>\n However the court found that the dismissal was not ‘procedurally fair’.<\/p>\n “Regarding procedural fairness, the court noted that merely sending a dismissal letter to the employee containing the reasons for his dismissal, whilst he was in prison, was procedurally unfair on the basis that the employee was not afforded an opportunity to be heard,” said Pienaar.<\/p>\n “The employee\u2019s dismissal was thus found to substantively fair but procedurally unfair<\/strong> and he (the employee) was awarded six months\u2019 remuneration as compensation.”<\/p>\n What employers need to know<\/strong><\/p>\n “Given the above, an employer who is faced with employees who are incarcerated for a substantial or indefinite period, should first consider alternatives to dismissal, such as the recruitment of temporary personnel,” said Pienaar.<\/p>\n If the recruitment of temporary personnel is not possible, or the position is such that it requires permanent employment, an employer may seek dismissal on the basis of incapacity, he said.<\/p>\n “When relying on dismissal on the basis of incapacity, the employer must also ensure that procedural fairness is maintained.<\/p>\n “This entails affording the employee the opportunity to be heard. This could be done either at an incapacity hearing prior to incarceration, by means of a hearing held at the place of incarceration or by inviting the employee\u2019s legal representative or shop steward to make written submissions on their behalf,” said Pienaar.<\/p>\n
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