“Once I pulled a job, I was so stupid. I picked a guy’s pocket on an airplane and made a run for it.” – Rodney Dangerfield
I think 99.99999% of us, do our best to NOT find ourselves on the wrong side of the law; sure, yes, there are varying degrees of sneaky short cuts we take, when we think nobody is watching; but what happens when you find yourself in the unfortunate position of being on the wrong side of the law?
Employees who have been arrested can have a negative impact on the employer’s business, production needs to continue, sales need to be made; business must continue as usual. While in most instances the alleged criminal misconduct is unrelated to the business of the employer; an arrest can directly impact both the operational requirements of the employer and the employment relationship.
Drawing insight from authority
There have been numerous cases where the courts have dealt with similar matters, for instance in the Visser vs Woolworths (2005) 11 BALR 1216 an employee was arrested for theft following an incident at a competitor of the employer’s store. Whilst the criminal case was still pending, even before a guilty finding, the employer dismissed her on the basis of breach of trust, due to her arrest. The employer relied on the fact that a number of junior employees look up to her for leadership and guidance and therefor decided that she could no longer be trusted. It was found, in this case that the arbitrator confirmed the employer’s right to dismiss an employee if the trust relationship has been irretrievably broken down.
However, the employer had failed to do due diligence. The employer did not conduct an investigation; subject the employee to a disciplinary enquiry to prove that the employee was guilty of theft on a balance of probabilities by giving her the opportunity to state her case; and failed to show how the employee could not be trusted. As such, the dismissal was found to be unfair and the employee was awarded an amount equal to eight months’ remuneration.
From the above case, we can conclude that it is of vital importance to show that there is a causal link or nexus to be drawn between the alleged criminal act, on the one hand, and the impact on the workplace, on the other. In other words, the employer must be able to show that the employee committed an act of dishonesty or misconduct at the workplace, such as theft or using company property, to commit a criminal act in order to link it to a criminal charge or to the damage caused to the company’s reputation. Or, at the very least, the employer must show how the impact of the criminal incident (outside of the workplace), completely, irretrievably broke the employer/employee trust relationship (within the workplace). This is done by establishing a common thread between the incident and the employer’s business, proving mere damage to the relationship, will not serve as sufficient proof of irretrievable breakdown of the trust relationship.
Incapable of performing duties whilst imprisoned
The Labour Relations Act 66 of 1995 (LRA) specify in Section 188 Other Unfair Dismissals, “(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove – (a) that the reason for the dismissal is a fair reason – (i) related to the employee’s conduct or capacity; or (ii) based on the employer’s operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure.”
With that being said, it is clear that an employer is entitled to dismiss an employee for reasons related to incapacity. Therefore, when an employee is physically unable to perform his duties and responsibilities (in accordance with his employment contract) by virtue of him being held in custody, his services may be terminated due to incapacity.
Moreover, upon perusal of the MIBCO Main Collective Agreement, Clause 4.1 Hours of Work, sub-clause (9) specifies that “For the purpose of this clause, an employee who is arrested or detained by the police for any offence or suspected offence shall, for the period during which he is under arrest or so detained and unable to continue his employment, be deemed to have absented himself without permission”.
The Labour Appeal Court further addresses this matter, in that case of Samancor Tubatse Ferrochrome v MEIBC & Others (2010) 31 ILJ 1838 (LAC) whereby an employee was arrested for allegedly committing armed robbery, and as a result, was absent from work for approximately 150 days; the employer decided to dismiss the employee on grounds of incapacity, without a disciplinary hearing, and subsequently delivered a letter of termination to the police station where the employee was imprisoned.
The Labour Appeal Court, agreed that an employer cannot be expected to hold an employee’s position open in abeyance indefinitely. Most especially a position of importance or a key role within the employer’s business. Accordingly, with consideration to the potential length of “indefinite” period of absence, incapacity would be an appropriate means of terminating the employee’s employment. However, the court reiterated the need for procedural fairness to be adhered to, to allow the employee an opportunity to state his case, and the court further deemed, written representations, as an appropriate means within which to comply with this procedural element of a fair dismissal.
The Supreme Court of Appeal (SCA), confirmed the decision of the court a quo, confirming that an arrest will be included in considering grounds of (operational) incapacity. Therefore, it would not be reasonable to expect employers to keep an arrested employee’s position within the company open and available for an indefinite period. Predominantly so where the employee holds an important or key position within the employer’s organisation.
Moreover, dependent upon the potential (indefinite) length of absence, incapacity could be the appropriate sanction for terminating the employee’s employment, after due procedure is followed.
Procedural fairness must still be adhered to and the employee must be given an opportunity to state his/her case, even if it is by way of written representation. It is important to note that the onus of proof rests on the employer to prove that either, the trust relationship has been irretrievably broken down for a dismissal to be justified; or prove grounds of incapacity. Furthermore, an employer’s obligation to pay an employee’s salary is suspended upon arrest – the principle of no work, no pay shall apply.
(Article by Anneke Venter, edited by Nichole Turner)
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