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Case law proves: Just because your employee has been imprisoned, doesn't mean you can dismiss him

by , 14 November 2014
Last month, Zamokuhle Mbatha was arrested for the murder of Bafana Bafana and Orlando Pirates captain Senzo Meyiwa.

At the time of the arrest, police officials assured the public they had the right man.

But, in a dramatic twist on Tuesday, murder and robbery charges were withdrawn against Mbatha. The magistrate said there wasn't enough evidence against Mbatha to carry on with his trial.

While this case has raised serious questions about police inefficiency, from a labour perspective, it has cast the spotlight on arrested employees.

Besides the fact that this is a high profile case, on instinct, most employers would have fired Mbatha if he was their employee.

Big mistake!

You can't dismiss your employee just because he's been imprisoned.

Don't believe us?

Here's a previous case that proves it...

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Here's a case that proves you can't dismiss your employee just because he's been arrested

Experts behind the Labour Law for Managers Loose Leaf Service explain that in the case between Mofokeng vs KSB Pumps [2003] 12 BALR 1342, the employee was imprisoned and later returned to work.
But, KSB Pumps (employer) didn't want him back. In turn, they paid him off on the grounds that he'd absconded.
The arbitrator didn't agree with this.
The arbitrator explained that abscondment only happens when an employee leaves his employment without the intention to return.
Since Mofokeng had returned to work immediately on his release from prison, he'd done nothing to give the impression he had no intention to return to work.
The arbitrator also ruled that KSB Pumps could have hired a temporary replacement instead of replacing Mofokeng.
The verdict?
In the end, the arbitrator found Mofokeng's dismissal was unfair and KSB Pumps was ordered to pay him five months remuneration.
So what can you learn from this case?
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You can't dismiss your employee just because he's been arrested

That's not all.
1. The fact that your employee has committed a crime doesn't remove his right to his job, unless it's an inherent requirement of his position that he doesn't have a criminal record.
2. You can't dismiss your arrested employee and replace him with a permanent employee until you have proof that he doesn't plan to return. Or until you've legitimately terminated his employment on some other ground.
3. You need to look carefully at your arrested employee's behaviour to see if it clearly indicates that he doesn't intend returning.
So, if for example, your employee tells you he isn't going to return, you might be able to take this as a termination of employment. Just make sure you have solid proof he said this and he meant it. If possible, get him to hand in a resignation letter.

You should never let your emotions take over when dealing with arrested employees

We can't deny that having screaming headlines that one of your employees has been arrested is bad for your company's reputation.
That said, you have to stick to what the law says and keep your emotions in check.
In terms of South African labour law, dismissing your employee just because he's been arrested is against his legal right to a fair disciplinary process.
If you cross the line, make no mistakes about it – your employee will take you to task. He'll take you to court and you could end up having to reinstate him or pay compensation.
Let this case (Mofokeng vs KSB Pumps [2003] 12 BALR 1342) be a lesson. Don't unfairly dismiss your employee just because he's been arrested.
PS: For more dismissal case law and dismissal in general, check out the Labour Law for Managers Loose Leaf Service.

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