Tuesday, May 06, 2008

What does an employer do when one of its employees fails to report to 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?
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 should (if possible) advise its employee who is being held in police custody that while so held, the company will not pay her for the time that she is unable to work. The employer is also entitled to employ another employee on a temporary basis.
An employer may terminate the services of an employee for reasons of “desertion”, which occurs where an employee abandons her job with the intention of not returning to work. Such conduct constitutes a breach of the employment 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. Whether an employee has deserted her employer or is AWOL depends on the circumstances of each case. 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 that the employee’s dismissal was unfair.
Although a dismissal on the basis of AWOL is theoretically possible, practically it will be difficult to hold a disciplinary enquiry for an employee who is being held in custody.
In terms of section 188 of the Labour Relations Act, 1995, an employer is entitled to dismiss an employee for reasons of incapacity. An employee who is being held in custody is incapable of performing her job in terms of her contract of employment and therefore her services may be terminated on that basis.
The courts have not indicated how long an employer would have to wait before terminating an employee’s services on the basis of incapacity. An employer would have to follow a fair procedure, which would involve giving the employee an opportunity to state her case, either via a discussion between the employee and an employer representative in prison, or communicating with the employee by way of correspondence.
Whether or not an employer will be entitled to terminate an employee’s services on the basis of incapacity in these circumstances will depend on a range of factors, such as the possible length of time that the employee will be away from work, the nature of the job, the possibly of securing a temporary replacement and the needs of the employer’s business.
Karen Fulton is a director and Eva Mudely a senior associate of Bowman Gilfillan