By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
It has been established that incarceration of an employee could justify the dismissal of an employee on the grounds of inability to provide his services. This is a type of incapacity.
However, such dismissal will not always be justified because the circumstances of each case are crucial in determining what is fair. Employers often make the mistaken assumption that employees who have been arrested automatically lose their employment status. 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. For example, in the case of Transnet Soc Ltd Vs UNTU (Lex Info 27 October 2025. Labour Court case number JR 1133/2023) the employee was jailed for an offence unrelated to his workplace. When the employer enquired as to his whereabouts, he responded that he was in jail and that his bail hearing had been set for nine days hence. Despite this the employer terminated the employee on the grounds of incapacity.
Following a CCMA arbitration the Labour Court was asked to consider the matter. The Court did not dispute an employer’s right to dismiss for incapacity an employee who was unable to attend work due to incarceration. However, the Court found that the employer had dismissed the employee prematurely. It should have awaited the impending bail hearing decision because nine days was not an unreasonable time to have to wait, and thereafter decided on whether the employee could or could not be accommodated. Had the employer done so it would either have been justified in terminating the employee or would have been able to allow him to return to work. Without the bail decision the employer would not have been in a position to make a fair decision on the employee’s fate.
The Court therefore ordered the employer to pay the employee 12 months’ remuneration in compensation.
While the above case decision 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 light of this employers should ensure that those responsible for making dismissal decisions are properly equipped to do so.
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