LABOUR MATTERS
A
bsenteeism is the most common
misconduct in the workplace.
But what happens when an
employee is absent from work because
he/she is in jail for a criminal offence
unrelated to the employer’s business?
Absenteeism is a form of misconduct
where an employee takes a wilful decision
not to attend work or report for duty on time.
When an employee is arrested and
jailed for a criminal offence committed
outside of the workplace, the absenteeism
is not an intentional decision by the
employee and must therefore be
regarded as ‘no-fault’ absenteeism.
In legal terms, the arrest and incarceration
were caused by a supervening impossibility
to perform the work that the employee was
hired to perform, which cannot be attributed
to either the employee or the employer.
In terms of the Code of Good Practice,
an employee can be dismissed on three
accounts: misconduct, incapacity (poor
work performance or medical disability),
or operational requirements (economical,
technological or structural reasons).
Incapacity is a ‘no-fault’ dismissal that
is not only limited to ill health or injury,
but may also include incarceration.THE EMPLOYEE’S OBLIGATIONS
An employee has a number of obligations
under common law that he/she must
meet. These exist even if they are not
specifically stated in the employment
contract, and include the following:- To provide the employer with his/
her labour (simply put, to be at work); - To obey reasonable and
lawful instructions; - To act in good faith and protect
the employer’s interests; - To behave according to the accepted norms
of society (to not commit misconduct); - To perform his/her duties: to
work in a satisfactory manner.
An employee who is incarcerated
contravenes the most important obligation
in the employer-employee relationship,
which is to provide the employer with
labour. This directly affects both the
operational requirements of the employer
and the employment relationship.
Employees who are unable to perform
at the required standard have a major
impact on the normal operation of a
business, as few employers have the
luxury of spare workforce capacity
to compensate for this deficit.
The Labour Court has found unequivocally
in the matter of First National Bank Ltd
v Commission for Conciliation, Mediation
& Arbitration & Others (2017) 38 ILJ 2545 (LC)
that in circumstances where an employee
fails to meet a legal requirement or
standard in order to perform his/her
employment functions, subsequent
dismissal would originate from the
employee’s failure to perform (incapacity),
and not from the operational requirements
of the employer’s business.
An employer cannot reasonably
be expected to keep a position open
and available to an arrested employee
for an indefinite period, especially
where the employee holds a key
position within the business.Depending on the potential length of
absence, incapacity would be the appropriate
means of terminating the employee’s
employment. An employer should take
note not to punish an employee on mere
suspicion of unproven allegations.
When dismissing an employee on
any grounds, it is paramount to follow
the correct procedure for the type of
dismissal, otherwise it can be classified as
unfair. A dismissal can be substantively
unfair if there is no fair reason for the
dismissal and procedurally unfair if
no proper procedure is followed.
In the event of an employee being
incarcerated, the employer has to deliver a
notice to the employee at the place where he/
she is incarcerated and provide the employee
with an opportunity to state his/her case
by way of written representations.
▪FWIF AN EMPLOYEE IS
JAILED, THE EMPLOYER
MUST ALLOW THE
EMPLOYEE A CHANCE
TO STATE HIS/HER CASE
BY CHRISTO
BESTER
For all labour-related issues,
phone the LWO Employers’
Organisation on 0861 101 828.
Email the LWO at
[email protected].
Subject line: Labour matters.
2 AUGUST 2019 farmer’sweekly 29An employee who is
incarcerated contravenes
the primary obligation
of providing his or her
labour to the employer.
Is a jailed employee
guilty of absenteeism?