Article 36/2021

Labour Edge

On what basis will an employer be entitled to dismiss an employee who has been imprisoned?


The labour court recently, in Molehe v Public Health and Social Development Sectoral Bargaining Council and Others (2019) 30 SALLR 182 (LC), adopted the following approach:

  1. the applicant had relied on the principle that ‘incapacity’ in labour law could also arise from imprisonment. However, as the labour appeal court, in Samancor Tubatse Ferrochrome v Metal and Engineering Industries Bargaining Council and Others (2010) 3 ILJ 1838 (LAC), stated:

‘[13]   …[I]n principle, it cannot be the case that the law has developed an inflexible rule; that is that incapacity which is outside of the control of the employee cannot be a cause for dismissal.’;

  1. the labour court noted that the above labour appeal court judgment had, in fact, been overturned on appeal because of the way the review test had been applied. However, that incapacity, outside the control of an employee, can lead to either a fair or unfair dismissal was reaffirmed; and
  2. in National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others (2011) 32 ILJ 1618 (SCA); [2011] 11 BLLR 1041 (SCA), the supreme court of appeal stated as follows:

‘It was submitted before us by its counsel that Samancor had not purported to dismiss Mr Maloma for fault on his part (that is, for the disciplinary offence of absenteeism).  He was dismissed because he was no longer capable of performing his employment duties (that is, for incapacity).  Reminding us of the ordinary consequences for a contract of the inability of one party to perform, counsel submitted that the inability of Mr Maloma to present himself for work in itself entitled Samancor to bring the employment to an end, which is what it had purported to do.

The submission is not altogether correct.  While ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not the end of the matter in the case of employment.  The question that still remains in such cases is whether it was fair in the circumstances for the employer to exercise that election.  In making that assessment the fact that the employee is not at fault is clearly a consideration that might and should properly be brought to account.  But the fact that Mr Maloma was not at fault was not the sole reason for the arbitrator’s decision.  Another consideration that he took account of – and it was clearly decisive of his decision – was that there was “no evidence that [Mr Maloma] was occupying such a key position in the company that necessitated his dismissal after ten days of absence”…’

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?