It is important to note that all disciplinary measures taken against employees should satisfy procedural and substantive fairness requirements as stipulated in the Labour Relations Act 66 / 1995.
Employers
should be cautious and avoid the pitfalls of terminating an employee’s
employment due to prolonged absence from work as a result of their
incarceration. In the event that there is no evidence that the employee
occupied a key position in the company that it
necessitated his dismissal after ten days of absence, the employer is advised
to keep an incarcerated employee’s position open until their return. Other than
proving that the employment relationship between the parties has become
intolerable, whether a dismissal in these circumstances is subsequently fair
depends upon the facts of the case.
The aforementioned sentiment has been confirmed by both the Labour Court Case of Trident Steel (Pty) Ltd v CCMA & Others 2005 10 BLLR 1028 and the Supreme Court of Appeal of NUM obo MJ Maloma v Samancor Ltd (Tubatse Ferrochrome) & others [2001) ZA SCA 74.
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