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?
What can the employer do?
- 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 the employee who is being held in police custody that while so held, the company will not pay for the time that the employee is unable to work.
- The employer is also entitled to employ another employee on a fix term basis until the employer has more clarity regarding the situation.
An employer may terminate the services of an employee for reasons of “desertion”, which occurs where an employee abandons his/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 his/her employer or is AWOL depends on the circumstances of each case.
The circumstances of each case play a role
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. When an employee is being held in custody and is incapable of performing duties in terms of the employment contract, his/her services may be terminated due to incapacity. However, the dismissal must comply with the principles of procedural and substantive fairness.
An employer cannot dismiss an employee for being in jail, without determining if the employee’s conviction and absence will damage the employer’s business.
The employer must always follow the correct procedure for dismissal in terms of a disciplinary hearing.