What process must an employer follow if an employee is absent due to incarceration

Case:

Ndzeru v Transnet National Ports Authority and Others (C369/2020) [2023] ZALCCT 11; [2023] 6 BLLR 565 (LC); (2023) 44 ILJ 1307 (LC) (16 March 2023).

Background:

Mr Ndzeru (the employee) was employed by Transnet National Ports Authority (the employer) as a marine shore hard at the Cape Town harbour. The employee requested 5 days leave and only 1 day was approved by the employer. Despite the remaining 4 days not being approved, the employee took the leave during this period. He was subsequently arrested in Limpopo pending a trial that resulted from an alleged hijacking and bail was denied.

?The employer had to conduct its own investigations to establish the whereabouts of the employee. The employer instituted incapacity procedures and handed a notice of an incapacity hearing to the employee’s wife. The employee did not attend but the hearing was attended by a trade union representative. The employee was dismissed for failure to discharge his duties for a period of seven weeks.

?The employee was granted bail at a later stage and received the notice of dismissal on the same day. One of his bail conditions (by then) was that he could not leave Limpopo. The employee referred a dispute to the relevant bargaining council. The arbitrator found that the dismissal was both substantively and procedurally fair. It was held that the employer had operational needs, that the employee was absent for a protracted period, that the allegation against him was serious and that there was no indication when he would be able to resume duties. The arbitrator also found that due process was followed.

?Aggrieved by the outcome, the employee approached the Labour Court in terms of section 145 of the Labour Relations Act, 66 of 1995.

The Labour Court made reference to Samancor Tubatse Ferrochrome v MEIBC & others?(2010) 8 BLLR 824?(LAC) where it was held that:

[14] In my view, given the facts of the present dispute, it was not reasonable to expect appellant to have kept the position open and available to fourth respondent for an indefinite period of time, particularly in circumstances where he held an important position within the organisation. The potential indefinite length of the absence from work of a person holding a position which could not easily be filled by temporary employees renders this case one of incapacity as I have applied that term.

The Labour Appeal Court (LAC) found that incapacity had a broader meaning and that each case had to be determined by its own merits and facts. The matter ultimately landed in the Supreme Court of Appeal which found that the categorisation of a dismissal was irrelevant to the specific case and the LAC had erroneously dealt with the matter as an appeal. The Supreme Court of Appeal set aside the judgment of the LAC, but did not deal with the principle of whether or not a post dismissal hearing should be held.

Key learnings:

There is no automatic or a general right to a post-dismissal hearing in cases of incapacity due to incarceration. Moreover, post-dismissal hearings were usually held where there was no initial hearing held. The cases referred to confirm the general principle that an employee is entitled to an opportunity to present his or her case before being dismissed and every case had to be considered on its own facts in determining whether this has happened.

It is therefore clear that an employer need not wait indefinitely for an employee’s return and may dismiss for incapacity after following due process. The employee must be given some opportunity to present a case albeit via a trade union representative or in writing.

Although there is no compelling argument to conduct a post-dismissal hearing (if a hearing was initially held), it would nevertheless be a safe option.

Significance of the case:

?This case clarifies how to handle dismissals due to incarceration, affirming that a fair process does not always require the employee’s direct participation, provided they have a reasonable opportunity to be heard.

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