across the bar

when crime does pay (at least 6 months salary)

by Ashley - Posted 21 May 2010

So what happens if one of your employees is arrested on suspicion of committing a crime and remains in custody for a long period of time? Does this constitute incapacity and can you then fire them?

The Labour Appeal Court was faced with this very question in the recent case of Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council (MEIBC) and Others. Mr. Maloma (not Malema) was employed by Samancor as a furnace operator. He was arrested on suspicion of having committed an armed robbery. He remained in custody and was absent from work for approximately 150 days!

10 days after his arrest, Mr. Maloma received a dear john letter from his employer advising him that he had been dismissed on the ground of incapacity, i.e. that he was physically unable to tender his services.

Previously, our law recognized two aspects of incapacity: a) poor performance - where the employee was incompetent at doing the work because of a lack of skill, knowledge, ability or efficiency; and b) ill health or injury. However, the new case law has extended these 2 categories and incapacity can now be permanent or temporary and may take other forms, for instance, imprisonment and military call-up.

The court took into account that Samancor had no idea how long Mr. Maloma's incarceration would last, and that they needed a quick replacement because of the skilled nature of his job. The court decided that the dismissal was substantively fair. Unfortunately Samancor dropped the ball by not giving Mr. Maloma a fair opportunity to present his case and so the dismissal was held to be procedurally unfair. They were ordered to pay him 6 months salary as compensation.

In other words, Mr. Maloma received paid leave from his employer for his stay in jail. Who says crime doesn't pay.