Many employers believe that the employment relationship automatically ends if one of their employees is arrested or imprisoned. This assumption is based on the employee’s unavailability to return to work, and, more importantly, the trust relationship has been tarnished due to the employee’s alleged criminal behaviour. Unfortunately, this is not the case. This then begs the question, which process should an employer follow in terms of termination of employment when an employee has been arrested or imprisoned?

In the case of Samancor Tubatse Ferrochrome vs MEIBC & others (2010) 8 BLLR 82, an employee was arrested and suspected of being implicated in an armed robbery. For six months, he could not render any service to his employer. As a result, the employer issued the employee with a termination letter. Months later, upon the employee’s release from prison, the employer conducted a post-dismissal enquiry for the employee and upheld the dismissal. The Commissioner and the Labour Court found that the dismissal of the employee based on imprisonment was both procedurally and substantively unfair. Unsatisfied with the outcome, the case was taken on appeal. The Labour Appeal Court held that based on the fact that the employee was not given an opportunity to exercise the ‘audi alteram partem’ rule (two sides of the story to be heard), the dismissal was deemed to be procedurally unfair.

In Ndzeru v Transnet National Ports Authority and Others (2023) 44 ILJ 1307 (LC), the employee was appointed as a Marine Shore Hand. The employee was absent from work from 28 May 2019 until 1 June 2019 and was involved in an attempted hijacking in which he shot two people. He was arrested on 7 June 2019 in Limpopo and denied bail. From the time of the incident till mid-July, the employee had not personally or through any other means notified his employer of his arrest or imprisonment. Upon confirming his employee’s location, the employer issued an incapacity notice to the employee’s wife. The incapacity hearing proceeded in his absence with the presence of the employee’s union representative. The outcome of the enquiry was a dismissal. In August 2019, the employee submitted a written communication to the company expressing his consent to the outcome of the enquiry and that he urgently sought his pension to be processed. On 12 August 2019, the employee was granted bail; however, he was required to remain in Limpopo based on his bail terms and conditions. In October, he was allowed to leave the province and returned to the Western Cape, where he later referred an unfair dismissal to the Bargaining Council.

The Commissioner found that the employee had been out of work for two months but had previously fulfilled an important role in the company and that the employee made no submissions to the company to keep his position open. The Commissioner found that the company could also not keep his role open indefinitely, and as a result, it found that his dismissal was substantively fair. The Commissioner, furthermore, stated that his dismissal was also procedurally fair in that he had accepted the outcome of his enquiry at the time of issue as he had no idea when he would be released. Unsatisfied with the outcome, the employee took the case on review and argued that his dismissal was procedurally unfair as he should have been granted a post-dismissal hearing. Furthermore, he alleged inconsistency of his dismissal and compared himself to other employees who had also been imprisoned. The issue of consistency was disregarded as the merits of other cases could not be compared to his case. The Court held that: “In light of the discussion above, while a case might have been made out for procedural unfairness, on what was before the arbitrator, I cannot say that the arbitrator’s findings that Ndzeru’s dismissal for incapacity was substantively and procedurally unfair.”

The lesson learned from this case is that there is no hard and fast set of rules when it comes to the dismissal of imprisoned employees, but rather for employers to ensure that a procedurally fair process is followed. This includes allowing representations to be made by the employee at the enquiry, who could be physically in prison, via a representative at the enquiry at the workplace, or by means of written submissions. If the above three options are not available, employers should consider a post-dismissal hearing after the employee’s release to determine the merits of the imprisonment and its impact on continued employment. Lastly, although not always possible, the safest option would be to consider the appointment of a replacement. This could be on a fixed-term basis, pending the release of the employee to determine if the employment relationship can continue.

Written by Tammy Barnard, Senior Dispute Resolution Official (CEO SA)