What does an employer do when an employee is arrested and in custody pending a hearing on a serious criminal charge?

Looking at our case law in this regard, the following principles had been developed over time:

1. In Trident Steel (Pty) Ltd v CCMA & Others 2005 26 ILJ 1519 LC an employee was in prison for a period from 23 December up until March the following year.

The company knew that he was in prison and had initially held a disciplinary inquiry in his absence where after he was dismissed.

On returning, a second disciplinary hearing was held where he was once again dismissed.

Judge Revelas made the following interesting observation –

“The only aspect on which I do criticize the arbitrator is that he did not take into account that imprisonment suspends the obligation of the employer to pay the employee a salary and for that period he was not entitled to remuneration.”

The court then endorsed the commissioner’s findings that the dismissal was unfair and the applicant was reinstated.

2. In Laminate Profile CC v Mampai & Others 2007 28 ILJ 1092 LC, Judge Sandi echoed the observation by Revelas J:

“Because of the employee’s detention during the period 8 of March 2001 to 25 of March 2002 the employer should have found as was held by Revelas J in the matter of Trident Steel (Pty) Ltd as a Commissioner for Conciliation Mediation and Arbitration 2005 26 LC that imprisonment suspends the obligation of an employer to pay the employee a salary and for that period an employee is not entitled to remuneration.”

In this matter the employee was then reinstated.

3. In National Union of Mine Workers v CCMA & Others 2009 30 ILJ 2771 LC, an employee’s services was terminated after he was sentenced to a 5 year term of imprisonment. Judge Francis found the following:

“However, if the impossibility to perform is either permanent or for a lengthy period, such as permanent incapacity or a lengthy jail sentence the contract automatically terminates once the permanency has been established.

The commissioner had made no finding about whether the impossibility to perform was permanent or for a lengthy period and despite failing to decide this issue, found that no dismissal had taken place.”

and further

“I am acutely aware that this matter should be referred to the CCMA and do not wish to express my views about whether the period of incarceration could be construed as a lengthy or permanent one. These are the issues that a commissioner should decide clearly guided by case law.”

4. In Samancor Tubatse Ferrochrome v Metal and Engineering Industry Bargaining Council unreported LAC case JA 57/08 the question was raised before the Labour Appeal Court whether employers are obliged to grant hearings to employees who are detained for any determined periods in police custody.

In that particular case, the employee had been held for 6 months on suspicion of having participated in an armed robbery.

At a point the employer lost patience and the HR manager sent a letter to the employee via the SAPS informing him that he had been dismissed.

When the employee returned to the workplace several months later the company granted him a post-dismissal hearing after which the dismissal was confirmed.

The court held that the dismissal was under circumstances substantively fair. However, the employer was still obliged to give the employee some sort of opportunity to make representations which it had not done.

Nor did the subsequent hearing rectify that oversight. The employee therefore received compensation equal to 6 months’ remuneration for the procedural unfairness.

Based on the above case law, the following legal principles were established:

1. imprisonment suspends the payment of the employee’s salary;
2. the period of imprisonment would be decisive in determining whether the employee has repudiated the employment contract;
3. the employer cannot summarily terminate the employment and the employee should at least be afforded the opportunity to give reasons why the employment contract should not be terminated (audit alteram partem principle).


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