Jail – what now?

What does an employer do when an employee fails to report for work and it is discovered that the employee has been arrested on criminal charges and is being held in police custody awaiting trial? Should the employee be treated as having deserted? Absent without consent? Incapacitated? Does the employee have to be paid? Those are some of the questions employers ask.

What can the employer do?

  • An employer is not obliged to pay an employee who does not attend work. This is based on the principle of no work no pay.
  • The employer is also entitled to employ another employee on a fixed term basis until the employer has more clarity regarding the situation.

Desertion constitutes absence from the workplace with the intention of not returning to work and is a breach of contract by the employee. The intention not to return to work distinguishes “desertion” from “absence without leave”, whereby an employee is absent from work but intends returning.

Circumstances of each case play a role.

The mere fact that an employee has been arrested and is consequently unable to attend work does not necessarily indicate an intention not to return. Accordingly, an employer who dismisses an employee on the basis of desertion, with knowledge that the employee is being held in police custody, would be at risk of a finding of unfair dismissal. Practically it will be difficult to have a disciplinary inquiry for an employee who is being held in custody.

According to Section 188 of the Labor Relations Act, an employer is entitled to dismiss an employee for reasons of incapacity. When an employee is being held in custody and is incapable of performing duties in terms of the employment contract, his/her services may be terminated due to incapacity.

An employer cannot dismiss an employee for being in jail, without determining if the employee’s conviction and absence will damage the employer’s business.

The employer must always follow the correct procedure for dismissal in terms of a disciplinary hearing.

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