Being in jail a good reason for dismissal for not being at work?

In the case of Samancor Tubatse Ferrochrome v MEIBC (Maloma & Stemmet NO) [2010] (Labour Appeal Court), the employee had been arrested on suspicion of armed robbery and he was remanded in custody. Ten days later (still in jail) he was informed by letter from his employer that he was dismissed for “incapacity”. He remained in custody for about 5 months and thereafter referred a dispute to the Metal & Engineering Industries Bargaining Council (same jurisdiction as the CCMA for disputes in the industry).
The commissioner who heard the matter ruled that his dismissal was both procedurally and substantively unfair and ordered reinstatement. The employer took the matter on review to the Labour Court, which agreed with the finding of the Bargaining Council that “incapacity” is related to ill health, injury or poor performance. It was the Court’s view that the real reason for dismissal was unauthorised absenteeism. Because he was in jail, the employee had no control over his inability to attend work and was thus not absent without authorisation.
The company went to the Labour Appeal Court, which found that the employer was correct because absenteeism can also take other forms than incapacity for ill health or injury, but can also include “imprisonment or military call up” which would result in the employee being incapable of “performing his obligations under the contract…” The Appeal Court found that the Court had mistakenly classified the matter as misconduct instead of incapacity. Further, that the fairness of dismissals depend on the facts of each case. The employer must consider the reasons for the incapacity, the length of incapacity and whether there are any alternatives to dismissal.
The Court found that it was not unreasonable for the employer to hold the job open for an indefinite period (the position was core, the employee held the post of furnace operator). However, merely sending a dismissal letter was insufficient: it did not give the employee a chance to be heard and give reasons why he should not be dismissed.
The Labour Appeal Court ultimately found that the dismissal was substantively fair (for good reason) but procedurally unfair. The employee was awarded compensation of six months’ remuneration. These findings were confirmed by the Supreme Court of Appeal.
Thus, employers whose employees are jailed for any period of time should consider alternatives to dismissal before making the final decision. Incapacity includes not being able to attend work because one is jailed, but there should be a chance to state a case – either in person or by way of a representative (a union official, a shop steward or even a legal representative) before the decision is finalised.