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Remember these five Dos and Don'ts if your employee's been arrested

by , 10 April 2013
As an employer on instinct, you'll probably want to fire an employee who's been arrested, is locked up in a police cell or even serving a prison sentence. Don't even think about it! Dismissing an employee just because he's been arrested is against his legal right to a fair disciplinary process and it could land up costing you! Read on to discover what you can and can't do when dealing with an employee who's been arrested...

If you think firing an employee who was arrested on the weekend and thrown in jail is the correct response, you're wrong.

It's not as easy as that!

In fact, this could be a big mistake. Not only is it costly, it's illegal and could land you at the CCMA for following an unfair disciplinary process.

It's vital you deal with the issue of an arrested employee sensibly.

Five Dos and Don'ts of handling arrested employees correctly

  1. 'When you don't hear from an employee, do whatever you can to find him. Contact his home, send him a message advising him to contact you, speak to his colleagues, phone his cell phone, contact local hospitals and police stations. This'll help you find out if he needs help, as well as whether you can expect him to return to work soon or not,' advises the Labour Law for Managers Loose Leaf Service.
  2. If your employee's been arrested, keep in touch with authorities to ensure you're kept up to date regarding his return to work.
  3. 'Avoid acting against the employee until you have all the facts, and enough proof that such action's merited,' says the Loose Leaf.
  4. If you hold a hearing, make sure you give all the evidence to a presiding officer who thoroughly understands labour legislation and all the possible pitfalls.
  5. 'Only consider dismissing the arrested employee if the arrest or imprisonment affects your business so strongly that it's clear dismissal's your only possible option,' advises the Loose Leaf.

So what constitutes arrest?

Keep in mind that an employee hasn't been arrested if he's just been taken to a police station for questioning. But, 'if he's taken into custody and then released on bail, then he's been arrested. That means the arrest may still stand even if he isn't actually behind bars,' says the Loose Leaf.

Warning: 'While it's possible for you to dismiss arrested employees and still win at the CCMA, you can only win if you understand the complex legal principles. If you want to avoid the harsh penalties of the CCMA, you must get advice from a reputable labour law expert before firing employees who've been arrested,' advises the Loose Leaf.

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