Dismissing employees who have been arrested can be dangerous.
It seems obvious to employers that, if an employee is arrested by the police he has ‘dismissed himself’. However, this mistaken belief is born from wishful thinking. Reasons for such wishful thinking may include:
- The employer fears having a criminal at the workplace
- Employers do not wish the names of their businesses or organizations to be associated with criminals
- The employer’s disciplinary code might state that a criminal conviction merits dismissal
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.
Several case decisions reflect this liberal philosophy to differing degrees. In the case of Langa vs CBC Laser Fab Engineering (2007, 6 BALR 526) the employee was given a prison sentence. After his release it was some time before he returned to work. 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
In Samancor Tubatse Ferrochrome vs MEIBC & others (2010, 8 BLLR 824) the employee was arrested and held in police custody on suspicion of having been involved in an armed robbery. After six months the employer dismissed him via a letter. Four months later, after the employee was released from custody, a post dismissal hearing was held where the dismissal was confirmed on grounds that this was the second time that he had been unable to perform his duties due to having been arrested. The arbitrator and later the Labour Court found the dismissal to be both procedurally and substantively unfair. The Labour Appeal Court (LAC) found that:
- The employee was dismissed after six months of absence by the employer who had no way of knowing when the employee would be released
- The employer had specific and valid operational reasons for needing the employee to be able to perform his duties
- The employer could not be expected to wait indefinitely for the employee’s return
- The employee’s arrest had incapacitated him so that he could not perform his duties
- The cause of incapacity that results in dismissal does not have to be confined to ill health
- The dismissal was therefore substantively fair
- It may have been impracticable for the employer to convene a hearing while the employee was in police custody
- However, the employer had dismissed the employee before giving him the opportunity to state his case
- The dismissal was therefore procedurally unfair
The employer was ordered to pay the employee six months remuneration in compensation
While the above case shows that it can be acceptable for employers to dismiss arrested employees this can only be done if the employer understands the complex legal principles prevailing. In the words of the LAC the fairness of a dismissal for incapacity “…depends on the facts of each case”. Employers should therefore get advice from a reputable labour law expert before firing employees who have been arrested.