Dismissal behind bars: Termination of employment in absentia

In Ndzeru v Transnet National Ports Authority and others [2023] (LC) the fairness of dismissal related to incapacity was determined in circumstances where an employee could not attend work owing to his incarceration.

In short, the applicant requested one day’s leave from his employer, which was approved in principle, however, when he submitted his application for formal approval on the automated leave application system, he had increased the leave request to 5 days. He was immediately notified that his application had been rejected. Nonetheless, he proceeded to take more than one day’s leave. During his period of unapproved leave, he was involved in an attempted hijacking incident. His version was that he was a victim in the incident in the course of which he defended himself with his personal firearm and shot two people. He was arrested and detained in Limpopo pending trial, during which he was refused bail twice. The applicant did not advise his employer why he had not returned to work.

Subsequently, the employer issued a notice to attend an incapacity hearing, which was handed to his spouse to convey to the applicant. After being advised of the hearing by his spouse, the applicant asked her to ensure that his trade union representative was present, in that he could not attend the enquiry in person due to his incarceration. The hearing proceeded in his absence, with his union representative present. The applicant was dismissed having being found guilty of failing to discharge his duties, for a period of over 7 weeks.

The applicant, upon being notified of his dismissal, wrote to the employer giving his consent and permission for the dismissal to proceed, reading “I will not contest or appeal the dismissal as I am satisfied with the outcome” and granted permission for management to start processing his pension payment. Around August, the applicant was granted bail, on condition that he would not be permitted to leave Limpopo Province. On the same day, he received the written outcome of the incapacity enquiry which advised him of his right to refer his dismissal to the bargaining council within 30 days of the dismissal. The arbitrator of the bargaining council found that his dismissal was procedurally fair for reasons, among others, that he had accepted the outcome of his enquiry given that at the time he believed he would not be leaving prison any time soon.

The applicant contended that the arbitrator failed to appreciate that he did not have an opportunity to state his case, arguing that he was entitled to a post-dismissal hearing to ensure this happened. As to the failure to give the applicant a post dismissal hearing, the Court held that although several judgements had dealt with hearings convened following the return of absent employees, none established a right to a post-dismissal hearing.

In determining the procedural fairness of the applicant’s dismissal, the Labour Court weighed up the adequacy of the hearing the applicant was afforded when it was held in absentia, and whether the failure to hold a post dismissal hearing meant that any defects in the original hearing were not rectified. The Court appreciated that the employer was faced with uncertainty as to if and when the employee would be returning to work, in the circumstances it could not be expected to wait until some indefinite future date when the employee might appear, before making a decision on the feasibility of the employee’s continued employment. This meant that the hearing would have had to take place in the employee’s absence. At no stage was it put to the employer why the original enquiry was inadequate. Had the applicant done so, he could have had an argument to justify why a post dismissal enquiry was necessary to rectify any short comings. This was not traversed in the evidence. Accordingly, the Labour Court held the arbitrator’s finding on the applicant’s acceptance of the hearing outcome could not be faulted. The applicant did not know how long he would remain in prison and there was no reason for the employer to expect that the dismissal would be challenged.

Importantly, employers need to consider the reasons for the incapacity, the extent of the incapacity, whether it's permanent or temporary and whether any alternatives to dismissal exist. There is no automatic right to a post-dismissal hearing in incapacity due to incarceration cases, and fairness of the hearing depends on the facts and evidence of each case.

We trust that you found this article informative, please email info@hjw.co.za for assistance with dismissal disputes.

By Alexi Rosenzweig, candidate attorney, and Rowan Bauer, attorney, working in the employment law practice area at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.