Most Recent Publications

 

Time to Bail Out? – Dismissal for “Operational Incapacity”

By Tanya Mulligan and Courtney Wingfield of Cowan-Harper-Madikizela Attorneys

 

Employers are increasingly confronted with absenteeism owing to the arrest of employees. While in most instances the alleged criminal misconduct is unrelated to the business of the employer, it directly impacts both the operational requirements of the employer and the employment relationship.

 

In Samancor Tubatse Ferrochrome v MEIBC & others (2010) 31 ILJ 1838 (LAC) the Labour Appeal Court had to determine whether the employer was legally entitled to terminate the employment of an employee who had been arrested for allegedly committing an armed robbery. In this instance, the employee had been absent from work for approximately 150 days, whereafter the employer dismissed the employee for incapacity by simply delivering a letter of termination to the police station where the employee was being detained.

 

The LAC, in our view, correctly found that it would not be reasonable to expect employers to keep a position open and available to an arrested employee for an indefinite period. This is particularly so where the employee holds an important or key position within the employer’s business. Accordingly, the LAC held that dependent upon the potential indefinite length of absence incapacity would be the appropriate means of terminating the employee’s employment. Procedural fairness must still however be adhered to and the employee must be provided with an opportunity to state his case, albeit by way of written representations.

 

The matter was subsequently referred to the Supreme Court of Appeal where the SCA confirmed that incapacity indeed included circumstances where an employee had been arrested i.e. operational incapacity.

 

The decision to conduct an incapacity enquiry in circumstances such as these is however dependent upon the length of absence and the position of the employee. It is trite that employees may not be punished on mere suspicion of unproven allegations and as such where temporary arrangements can be made to fulfil the employee’s function, this should be done.

 

Irrespective of whether an employer considers it appropriate to conduct an incapacity hearing, it is important to remember that an employer’s obligation to pay an employee’s salary is suspended upon arrest. Notification to this effect should accordingly be sent to the employee without hesitation. (See: United Chemical Industries Mining Electrical State Health & Aligned Workers Union on behalf of Ngwenya and Efficent Engineering (2013) 34 ILJ 3400 (BCA)).

 

Operational incapacity should furthermore not be conflated with absenteeism, which is a form of misconduct. Incapacity is a “no-fault” dismissal caused by a supervening impossibility to perform the work the employee was hired to perform, the fault of which cannot be attributed to either the employee or the employer. In this regard, the Code of Good Practice: Dismissal should be considered.

 

Incapacity is not limited to ill health or injury and accordingly, incarceration can constitute incapacity. See also First National Bank Ltd v Commission for Conciliation, Mediation & Arbitration & others (2017) 38 ILJ 2545 (LC) where we successfully represented FNB, and where the Labour Court found unequivocally that in circumstances where an employee fails to meet a legal requirement or standard in order to perform their employment functions, their subsequent dismissal would originate from the employee’s failure to perform i.e. incapacity and not from the operational requirements of the employer’s business.

 

Whether particular circumstances dictate an incapacity enquiry is accordingly a question of fact and legal advice must be sought in order to determine the best approach to be adopted.

 

For more information please contact Tanya Mulligan at  or (011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys www.chmlegal.co.za

 

 

 

 

 

 

 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

Read More >>>

 

Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

Read More >>>

 

Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

Read More >>>

 

Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

Read More >>>

 

 

 

 

 

 

Courses and Workshops

 

                                         

 
 

Employment Equity Committee Training

23 August 2019 (Fully Booked)

Emperors Palace: Convention Centre

29 August 2019 (Fully Booked)

Tsogo Sun: Century City: Cape Town

30 August 2019

Tsogo Sun: Century City: Cape Town

27 September 2019

Emperors Palace: Convention Centre

04 October 2019

Southern Sun: Maharani: Durban

Shop Steward Training

28 August 2019

Emperors Palace Convention Centre

Basic Labour Relations

04 September 2019

Emperors Palace: Convention Centre

Compensation for Occupational Injuries and Diseases Course

12 September 2019

Southern Sun: Maharani Towers: Durban

The OHS Act and the Responsibilities of Management

13 September 2019

Southern Sun: Maharani Towers: Durban

19 September 2019

Emperors Palace: Convention Centre

28 November 2019

Protea Hotel By Marriott Tyger Valley: Cape Town

Managing Day to Day Issues/ Problem Employees Full day workshop

20 September 2019

Emperors Palace: Convention Centre

27 September 2019

Tsogo Sun: Century City: Cape Town

AARTO and the Impact on Your Business

03 October 2019

Emperors Palace Convention Centre

Hazard Identification & Risk Assessment Course

18 October 2019

Emperors Palace: Convention Centre

21 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

Workshop Incident/Accident Investigation Course

25 October 2019

Emperors Palace: Convention Centre

22 November 2019

Tsogo Sun: Century City: Stay Easy: Cape Town

  

 Our Clients 

 

Android App On Google Play

Android App On Google Play