Employers can take comfort in knowing that the courts recognise it as a dilemma when there is a situation where an employer does not know when the employee will be capable of resuming his or her duties, or even whether they will be resumed at all. However, like in alI other circumstances in the workplace, there is no universal answer and the question of whether the employer has acted fairly will depend on the facts of the case.

In March 2023 the Cape Town Labour Court again had to consider this question in the matter of Ndzeru v Transnet National Ports Authority and Others [2023] (C369/2020) which we look at in this article. 

Brief facts

Mr Ndzeru (the employee) was employed by Transnet National Ports Authority (the employer) as a marine shore-hand working at Cape Town harbour. The employee had requested leave for five days, which was rejected by the employer as only one day of leave had been approved. Regardless of this, the employee took more than one day and while on leave, was an alleged victim of an attempted hijacking in which he shot two persons, allegedly in self-defence. He was arrested and detained in Limpopo pending trial. He had been refused bail on two occasions. The employee did not advise the employer of his incarceration. The employer became aware of his situation as a result of its own investigations after the employee had not reported to work for several weeks.

Subsequently, the employer conducted an incapacity hearing. The notice of the hearing, detailing his rights, was given to the employee’ spouse to convey to him. The employee then requested that his trade union represent him, which it did. Following the hearing, the employee was found guilty and dismissed for failing to discharge his duties for a period of almost two months. The employee then approached the bargaining council on the grounds that his incapacity hearing was procedurally unfair as he was not given the opportunity to give his side of the story and was denied a post-dismissal hearing. The bargaining council found that his dismissal was both procedurally and substantively fair.

Findings of the Labour Court

The court held that there is no general right to a post-dismissal hearing in cases of incapacity due to incarceration. It found that in cases where a post-dismissal hearing takes place it is usually because the employer did not notify the employee that the disciplinary hearing was taking place in their absence, or the post-dismissal hearing was provided for in the disciplinary code.

The court held that the established principle is that an employee must be given an opportunity to present their case before being dismissed.

The court held that an employer who is uncertain about when an employee will return to work cannot be expected to wait for that employee indefinitely and that it is entitled to decide whether it is still feasible to keep the employee. A hearing in absentia can take place, provided the employee is given an opportunity to make representations. This can also be done in writing.

The court in this case found that the employee had failed to properly argue why the original hearing was not fair(inadequate), which would have justified the need for a post-dismissal enquiry. His dismissal was found to be procedurally and substantively fair and the review application was dismissed. 

Conclusion

The take home is that that an incapacity hearing can be held in absentia where an employee is incarcerated. What is required from the employer, however, is to ensure that the employee is given the opportunity to state a defence before a dismissal is effected. A post-dismissal hearing is not an automatic right. It may be necessary where the employer has failed to afford the employee an opportunity to state their defence and as a mechanism to remedy the defects of the original hearing in absentia.