Articles

Dismissing imprisoned employees

Business Brief December 2010
By Lavery Modise & Carolyn McKechnie

Prior to the Labour Appeal Court decision of Samancor Tubatse Ferrochrome v MEIBC, an employer could not dismiss an employee, who was imprisoned for non-work related reasons, on the basis of incapacity.

In Samancor an imprisoned employee, who was absent from work for 150 days, was dismissed on the grounds of incapacity. The employer sent a letter to the employee setting out the grounds for dismissal and informed him of an enquiry, which would take place on his release.

The Labour Court interpreted the term “incapacity”, narrowly, only to include “injury”, “ill health’’ or “poor performance”; and as a result, found that the employer’s charge exceeded the scope of incapacity.

The Labour Appeal Court opted for a broader interpretation of the term “incapacity”, to include the inability of an imprisoned employee to fulfil his work related obligations.

Despite this, the dismissal would still need to be substantively and procedurally fair. The employer would need to consider the reasons and extent of the incapacity, whether it is permanent or temporary and any alternatives to dismissal.

On the facts of this case, the employer was not certain about the length of time his employee would be imprisoned.

In addition, the position held by the employee was highly specialised and required the employer to timeously employ a similarly skilled person in the imprisoned employee’s position. As a result, the court held that the dismissal was substantively fair.

In determining the procedural fairness of an imprisoned employee’s dismissal, the court held that the employee would need to be afforded an opportunity to present his case as to why he should not be dismissed.

Only after such representations have been made and properly considered by the employer can a decision be made, on an informed basis, whether or not the employee should be dismissed. Should an employer fail to afford his employee such an opportunity, the employee would be entitled, in terms of s194 of the Labour Relations Act, to claim a maximum of 12 months’ remuneration.

As a result of this judgment, an imprisoned employee can now be dismissed by his employer on the basis of incapacity, provided that the dismissal is both substantively and procedurally fair.

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