Five situations you may face when an employee's arrested or imprisoned
An employee who:
1) Has been arrested and then released;
2) Has been arrested and locked up;
3) Has been found guilty and released;
4) Has been found guilty and serving jail time; and
5) Escapes from prison.
Let's look at these in detail.
1. An employee who's arrested and then released
It's possible your employee's arrested and then released while he waits for a court hearing. This could happen for a minor offence or because of overcrowding in prisons. If this happens, you might not even know he's been arrested.
Let's say, Peter's friends dare him to steal a beer from the bottle store. The storeowner catches him and he's arrested. But the police release him. He agrees with the bottle storeowner he'll work at the shop every Saturday for two months, and the charges are withdrawn. You won't need to hold a disciplinary hearing in this case.
Think about including a clause in your employment contracts saying employees must tell you if they're arrested. They must request leave if they need time off to go for a court hearing. Then, if he goes to court during working hours without permission, you can use that as your case to discipline him by following your disciplinary procedures.
You can't discipline an employee if he doesn't tell you he was arrested, released and now waiting for a court hearing. This is of course, unless you specifically ask the employee if he's ever been under arrest in his employment contract. In this case, him not telling you will amount to dishonesty and you can discipline him for it. But, you won't be disciplining him for the arrest, but rather for being dishonest.
2. An employee who's arrested and locked up
So your employee's in a cell while waiting for his court hearing. This means he's under arrest, but hasn't appeared in court. He also isn't in prison.
He's only being held by the police temporarily as a precautionary measure. Maybe they wouldn't give him bail. Or, if they did, he can't afford to pay the bail amount. He'd then have to stay in a cell while waiting for his trial.
If an employee's arrested and locked up for an unreasonable period of time, it may be possible for you to dismiss him for incapacity. You must then follow your dismissal process for incapacity. In this case, you'll have to determine reasonable time by your operational requirements. For instance, if your business can't operate without him.
Keep reading for the next three...
Do you know how to legally dismiss your employee?
Legally, dismissals are either 'fair' or 'unfair'… And there are only three reasons for a 'fair' dismissal. And, even if you dismiss with due cause, if you don't follow the correct procedure, you'll end up at the CCMA for sure!
Use the tips, advice and checklists from the Labour Law for Managers Loose Leaf Service to ensure your dismissals are watertight.
3. An employee who's guilty and released
If your employee's been found guilty and given a suspended sentence, fined or community service, and released. He isn't serving a prison sentence, but he's committed a crime and now has a criminal record.
You can dismiss an employee who has a criminal record if it affects your business and the trust relationship. For example, let's say your financial manager is arrested for theft. This obviously breaks down your trust as he needs to deal with money in your business.
4. An employee who's found guilty and put in prison
The court finds your employee guilty. He's received his sentence and put in prison. This means he won't be able to work until his release.
Deal with this as incapacity. If an employee is arrested and locked up for an unreasonable period, you can dismiss him for incapacity. But you can't just fire him for having a criminal record.
You also can't fire him for not being able to work because he's in prison. Unless you can show your business can't run and you can't keep the position open for him until his release.
5. An employee who escapes from prison
What happens if your employee escapes from prison but tells you they let him free? Ask him for proof of his release. This'll stop you from unintentionally having an escaped criminal on your premises.
Just make sure you contact the authorities on the document to confirm it's real.
So even if your employee's under arrest for road rage, or any other reason, you can't discipline or dismiss him without following proper disciplinary procedures. Even if you have pressing reasons to dismiss the employee.