INCARCERATED EMPLOYEES STILL HAVE A DUTY TO THEIR EMPLOYERS

In the recent case of Sibanye Rustenburg Platinum Mines V CCMA [2025] ZALCJHB 207 the Labour Court has upheld the dismissal of two employees who were absent from work for 16 months due to incarceration, ruling that their absence constituted desertion under company policy.

Background

The employees failed to report for duty between late 2018 and March 2020. The company’s desertion policy deems absence of seven or more consecutive days without permission as misconduct. Despite attempts to contact their next of kin, the company received no communication about their whereabouts and dismissed the two employees.

The employees later challenged their dismissals through the Commission for Conciliation, Mediation and Arbitration (CCMA) and contended that prison rules barred them from notifying the employer. The arbitrator found the absence was due to incarceration, not desertion and ordered their retrospective reinstatement.

Labour Court Review

The employer sought review of the CCMA award where the court found that the CCMA arbitrator misdirected the enquiry by focusing on the employees’ intention to return rather than the fact of absence without permission.

Incarceration did not exempt the employees from the obligation to place their services at the employer’s disposal. The arbitrator’s reliance on “humanitarian grounds” was unreasonable, as the company had already attempted to trace the workers.

The Acting Judge found that retrospective reinstatement was unjustified, given the employees’ inability to render services during their absence. The employer had followed fair procedure, made numerous attempts to ascertain their whereabouts and could not hold the roles open indefinitely.

The court therefore ruled that the dismissals were substantively fair. The arbitration award was set aside and replaced with confirmation of the dismissals.

Significance

What is interesting about this case is that the procedure followed by the employer was dependent on the facts known to them at the time. Had the employer known that the employee was incarcerated, the correct procedure would have been incapacity, not desertion.

Important considerations related to incarceration

As alluded to above, had the employee’s or their family members communicated with the employer and informed the employer about their incarceration then, under the new Code of Good Practice on dismissal, the matter would be dealt with under incapacity rather than desertion.

A summary of the procedural and substantive considerations in relation to incarcerated employees is provided below.

PROCEDURAL CONSIDERATIONS	SUBSTANTIVE CONSIDERATIONS
Investigate the Incapacity	Nature & Duration: Temporary or permanent incapacity, unreasonable length
Employee’s Right to Respond	Impact on Business: Undue hardship, temporary filling of position
Explore Alternatives to Dismissal	Possibility of Alternatives: Temporary replacement, alternative duties within organisation=
Consider Employee’s Circumstances	Reason for Incarceration: Misconduct affecting work or unrelated issue
Consistency	Effect on Relationship: Feasibility or intolerability of continued employment
Fair Procedure	Appropriateness: Dismissal only if no reasonable alternatives, absence incompatible with needs
Consultation	Non-Discrimination: No automatically unfair grounds (e.g., discrimination, union activity)

Employer and employee obligations

The ruling reinforces that an employee has an obligation to fully place his or her services at the disposal of the employer and that employees must notify their employer about their absence and provide a valid reason for it.

It also reinforces that Employers are obliged to make reasonable attempts to contact missing employees to determine their whereabouts.

Having clear policies regarding an employee's obligation to report their whereabouts, especially when they cannot come to work was paramount to the employer’s success in this matter.