South African employers are increasingly confronted with absenteeism due to the arrest of their employees. Whilst, 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.
It would not be reasonable to expect employers to keep a position open and available to an arrested employee for indefinite period. This is particularly so where the employee holds an important or key position within the employer’s business.
Dependent upon the potential indefinite length of absence, incapacity would be the appropriated means of terminating the employee’s employment. Procedural fairness must still, however, be adhered to and the employee must be provided with an opportunity to state his case – albeit by way of written representations.
On the other hand, employees may not be punished merely on suspicion of unproven allegations, and where temporary arrangements can be made to fulfill the employee’s function, this should be done.
Irrespective of whether an employer considers it appropriate to conduct an incapacity hearing, it is important to remember that an employer’s obligation to pay an employee’s salary is suspended upon arrest.
Incapacity is a ‘no-fault’ dismissal caused by an impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer.
It should be noted that incapacity is not limited to poor work performance, ill health or injury and accordingly, incarceration can constitute incapacity.