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 permission? Incapacitated? Does the employee have to be paid? Those are some of the questions employers ask.

Do’s and donts when your employee is in jail:

  • No work – no pay! 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.
  • Work must go on, ensure you have the right contract in place. The employer is also entitled to employ another employee on a fixed term basis until the employer has more clarity regarding the situation.
  • Do I follow a desertion protocol? No, 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. In cases where an employee is in jail, the intention to return to work is likely present and accordingly the desertion protocol would not be advisable in all cases. Circumstances of each case play a role, 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.

What do I need to do?

According to Section 188 of the Labour 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, after a fair procedure was followed.

An employer cannot dismiss an employee for being in jail, without following a fair incapacity procedure. Various factors need to be taken into account with regards to the reasoning why the employee should not be allowed to resume duties after the jail term.
Contact your LWO legal advisor to ensure you follow both a substantive and procedurally fair procedure.



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