The interplay between criminal law and labour law

​Employers are often required to implement steps against employees who are convicted and imprisoned for criminal offences. There may be several permutations of this, for example, an employer may be confronted with an employee who has been found guilty of criminal activity which has a direct bearing on his or her employment, or the criminal conviction may be entirely unrelated to the employee's employment, but the employee is not able to render services by virtue of his/ her imprisonment.

By law, an employer is entitled to institute disciplinary action against an employee based on a criminal conviction if a direct connection can be established between the employee's crime and the employer's business. The Labour Court recently considered the fairness of a dismissal for incapacity in circumstances where the employee was convicted of a criminal offence for conduct ostensibly unrelated to his employer. (See Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (167/2014) [2019] ZALCCT 19 (2 August 2019)).

Mr Molehe was employed as a social worker by the Department of Social Development in the Free State. In 2011 he was handed a sentence of four years following his conviction on charges of bribery and corruption. While in prison, the employee received a notice of termination of employment on the grounds of his incapacity. Upon his release from prison the employee challenged the fairness of his dismissal at the Public Health and Social Development Sectoral Bargaining Council (Council). The Council held that the employee's dismissal was substantively fair but procedurally unfair. The employee reviewed the arbitration award on the basis that he disagreed with the finding of substantive fairness. In this regard the employee contended that the arbitrator erred in concluding that imprisonment qualified as incapacity warranting dismissal. The employee sought reinstatement.

The Labour Court confirmed that there is no inflexible rule in our law which states that incapacity which is outside of the control of the employee (e.g. imprisonment) cannot be a cause for dismissal. Although imprisonment cannot strictly be attributed to ill-health or injury, imprisonment may - depending upon the facts of the case - still fall under the broad umbrella of incapacity. While the Labour Court affirmed the substantive fairness of the employee's dismissal for incapacity, the finding of procedural unfairness stood. It is likely that the reason for this is that the employer simply terminated the employee's employment without recourse to any form of pre-dismissal procedure.  While an employer cannot be expected to hold a formal incapacity or disciplinary inquiry when an employee is incarcerated, the principles of natural justice still require that the employee be given an opportunity to make representations to the employer concerning proposed action against him/her.

Ultimately, however, as with all matters of labour law, each set of circumstances will dictate the correct approach to take and the extent to which the employer may dispense with the pre-dismissal procedures contemplated in the Code of Good Practice.