The matter was first dealt with in Trident Steel (Pty) Ltd v CCMA and others (2005) 26 IJL 1519 (LC). In this case the Labour Court held that such an employee cannot be dismissed because his absence was beyond his control. In other words, dismissal based on absenteeism would be unfair.
This issue has been raised again in NUM obo MJ Maloma v Samancor Ltd (Tubatse Ferrochrome) & others  ZA SCA 74. In this case the employee was dismissed on the basis of incapacity after he had been absent from work for a period of ten days. He remained in custody and was absent from work for apparently plus minus 150 days.
During his incarceration, the employer served the employee with a dismissal letter and after he was released on bail, a post-dismissal hearing was held but the employer upheld the dismissal. The employer considered the Trident case and terminated the employment due to incapacity. The Labour Appeal Court (LAC) found that the dismissal for incapacity of an employee who was incarcerated for a considerable period, was substantively fair.
With regards to procedural fairness, the LAC held that it may have been impossible for the employer to hold a pre-dismissal hearing, but merely providing the employee with a letter informing him of the decision to dismiss him and the reasons for dismissal, did not constitute a fair procedure. The employee referred the matter to the Supreme Court of Appeal (SCA).
The SCA found that, while ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not necessarily the end of the matter in the case of employment. The question that still remains in employment matters is whether it was fair in the circumstances for the employer to exercise that election to cancel.
The SCA then considered Mr Maloma’s particular circumstances which were that:
- He was not at fault
- There was no evidence that he was occupied in such a key position in the company at necessitated his dismissal after 10 days of absence
- The arbiter had not been persuaded that the employment relationship had become intolerable.
- And that the arbiter’s reasoning shows that he would have reached the same conclusion regarding the fairness of the dismissal, however it was categorised.
Mr Maloma’s appeal was upheld with costs and the order of the LAC was set aside.
While the court recognises incapacity as a valid ground for dismissal, it also defines incapacity as reason relating to the employee’s poor performance, injury or ill health. Where does an employee who is incarcerated fit into this incapacity?
Incapacity may be permanent or temporary and may have either a partial or a complete impact on the employee’s ability to perform the job. The Code of Good Conduct: Dismissal conceives of incapacity as ill health or injury but it can take other forms. Imprisonment and military call-up, for instance, incapacitate the employee from performing his obligations under the contract….”
In Armaments corporation of South Africa (SOC) Ltd v CCMA (2016) 25LC the Labour Court held in this regard that incapacity can arise from any condition or circumstance that rendered an employee incapable of performing his work.
Based on the decisions of Trident Steel and Samancor, an employer who has an employee who is incarcerated for a non-work related offence and it is one of its key employees incarcerated for a considerable period, may consider whether there are grounds to either retrench or dismiss him for incapacity but still taking procedural fairness into account. A dismissal for misconduct merely based on the employee’s absenteeism from work (and where the incarceration is based on an offence unrelated to the workplace) could be found to be unfair.
Are you truggeling with employees that are in jail all the time? Contact one of our labour legal advisors here.
ABOUT THE AUTHOR
Nicole Sauls has been a SEESA Labour Legal Advisor since 2014. She obtained her B.Com law degree from the university of the Western Cape in 2006 and her LLB degree from UNISA in 2014. She is currently studying towards her Masters degree in labour law.