The following factors should be considered in determining if the dismissal was fair:

a) The reason for incapacity, including whether it was a lawful arrest;
b) Whether the employee was at fault;
c) Whether he or she caused the situation;
d) Whether the employee was in the end convicted;
e) Whether the employee’s actions leading to the arrest rendered a continuation of the employment relationship intolerable;
f) The extent of the incapacity ( permanent or temporary) – If the employee committed a crime for which mandatory long-term imprisonment is prescribed, the incapacity is likely to be permanent. If, on the other hand, the employee is, or is likely to be released on bail, the incapacity would be temporary.
g) Alternatives that could be considered – Hiring a temporary replacement. Keep in mind that the imprisoned employee is not entitled to pay during his/her imprisonment. The employee may be highly skilled and the employer is not able to keep the position vacant or use temporary labour indefinitely.
h) The size and financial position of the employer party;
i) The importance of the position occupied by the employee;
j) Level of skill required for the position;
k) Does fairness require that the position be kept open? ;
l) Could a temporary arrangement be made? ;
m) Personal circumstances of the employee.

What about procedural fairness?

The employer is still obliged to give the imprisoned employee an opportunity to be heard before deciding to dismiss. This can be in a form of a visit to the prison.

In summary, we would advise employers who become aware of the imprisonment of an employee, to take the following steps as soon as possible:

  • Determine whether the employee’s conduct constitutes misconduct towards the employer (that is, whether it is work-related, e.g. theft from the employer. If so, disciplinary action can be taken and you need not wait for the court proceedings to be completed. The employee is entitled to an opportunity to state his/her case before a decision is made.
  • Determine the extent to which the nature of the crime committed has an impact on the employment relationship. Even where the transgression was not aimed against the employer or a fellow employee, it might still have a detrimental effect on the employment relationship, e.g. an accountant who committed fraud outside the context of the employment relationship.
  • If you are aware of the employee’s imprisonment you need to establish as soon as possible where he or she is being held, for what, who the investigating officer is and whether or not the employer has legal representation. In the latter event, we would advise that you try to work with the representative in deciding on a way forward. The investigating officer, in the absence of a representative, should be able to provide you with details of the case.
  • Wait for the employee’s court appearance to determine whether or not bail will be granted. If so, the employee is entitled to return to work. Suspension with pay pending the outcome of the trial must comply with the normal requirements for suspension which include a good reason for it, e.g. a reason to believe that the person’s presence at work would pose an unacceptable risk to the employer or others. If bail is not granted, try to establish when the trial is expected to be completed. If this is uncertain or not reasonably possible for the employer to retain the position as a temporary replacement, a notice to attend a disciplinary hearing should be sent to the employee informing him/her that the employer is considering terminating the employee’s services for misconduct or incapacity. It would be prudent for the employer to convene a disciplinary hearing and give the employee an opportunity to state his/her case preceding the decision to dismiss.
  • Keep in mind that in a situation where the reason for the imprisonment does not have a direct impact on the employment relationship, the key requirements for substantive fairness are the duration of the employee’s absence and whether reasonable alternatives to dismissal existed.


For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

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