Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees. This also relates to the procedure employers should follow when an employee is arrested or detained by the South African Police Services for a lengthy period. The mere fact that an employee has been arrested and is consequently unable to attend work does not necessarily indicate an intention not to return. Accordingly, an employer who dismisses an employee based on desertion, with knowledge that the employee is being held in police custody, would be at risk of a finding of unfair dismissal.
What we know for certain when it comes to the employer’s obligations towards employees who have been imprisoned for conduct that is not work related, is that: –
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Imprisonment suspends the employer’s obligation to remunerate the employee for the period of the employee’s imprisonment.
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The employer is also entitled to employ another employee on a temporary basis until the employer has more clarity regarding the situation.
In a recent Labour Court case, Ndzeru v Transnet National Ports Authority and Others (2023) 44 ILJ 1307 (LC), the Court considered whether an incarcerated employee who had been dismissed in absentia while he was in prison was entitled to a post-dismissal in-person hearing after he had been released from prison. The employee, a Marine Shore Hand employed at Cape Town Harbour, was arrested and detained in Limpopo pending trial, while on unauthorised leave. The employer became aware of his situation as a result of its own investigations after the employee had not reported to work for several weeks. A notice of an incapacity hearing scheduled was handed to his spouse to convey to him. As he was unable to attend the hearing in person, a trade union representative attended the hearing on his behalf.
At the conclusion of the enquiry, he was dismissed having been found guilty of failing to discharge his duties for a period of just over seven weeks. The employee wrote to Transnet stating that he had received the outcome of the hearing and gave his consent and permission for the dismissal to proceed and granted permission to start processing his pension payment. After he was released and unsuccessful attempts for re-employment or reinstatement with Transnet, the employee challenged his dismissal at the relevant bargaining council on the grounds that his incapacity hearing was procedurally unfair. He stated that he was not given the opportunity to give his side of the story and was denied a post-dismissal hearing. The bargaining council found that his dismissal was both procedurally and substantively fair.
Dissatisfied with the award, the employee sought a review in the Labour Court. The court held that there is no general right to a post-dismissal hearing in cases of incapacity due to incarceration. It found that in cases where a post-dismissal hearing takes place it is usually because the employer did not notify the employee that the disciplinary hearing was taking place in their absence, or the post-dismissal hearing was provided for in the disciplinary code.
The court further held that an employer who is uncertain about when an employee will return to work cannot be expected to wait for that employee indefinitely and that it is entitled to decide whether it is still feasible to keep the employee. A hearing in absentia can take place, provided the employee is given an opportunity to make representations. This can also be done in writing. The court in this case found that the employee had failed to properly argue why the original hearing was not fair (inadequate), which would have justified the need for a post-dismissal enquiry. His dismissal was found to be procedurally and substantively fair and the review application was dismissed.
To determine whether the requirements for procedural fairness had been adequately complied with, the Court developed the following list: –
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If the employee cannot be present at their hearing, then, at the very least, they should be invited to submit a written statement setting out their defence and why they should not be disciplined.
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The employee’s written statement should preferably be made after having received at least a summation of the material facts advanced by the employer.
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If found guilty, the employee could be given a chance to make representations on the sanction to be imposed, even if that is only in a written form.
The above matter illustrates the importance of the right to a procedurally fair hearing. Employers should therefore tread with caution when initiating hearings in absentia. In summary, what is required from the employer is to ensure that the employee is given the opportunity to state a defence before a dismissal is effected. A post-dismissal hearing is not an automatic right. It may be necessary where the employer has failed to afford the employee an opportunity to state their defence and as a mechanism to remedy the defects of the original hearing in absentia.
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