10 April 2025
The arrest of an employee presents a complex and sensitive situation for any employer, often leading to unexpected legal and operational challenges. Whether for a minor offence or a serious crime, the immediate question for business owners is: What do we do now? While the presumption of innocence under South African criminal law remains paramount, the practical realities of workplace operations and the subsequent effect on the organisation cannot be overlooked. Therefore, South African employers must balance legal obligations with business interests and operational requirements, as this is crucial in determining an appropriate and compliant course of action when facing the arrest of an employee.
- Legal Framework: Employers' Rights and Responsibilities
South African labour law, guided by the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA), emphasises the importance of compliance as well as substantive and procedural fairness. Though it is tempting for employers to protect their own business interests, they should also guard against the violation of an employee’s rights. Wrongful dismissals may have dire consequences for employers should the matter proceed to the CCMA or Labour Court. Key legal principles to consider include, but are not limited to:
- Presumption of Innocence: The principle of "innocent until proven guilty" remains a cornerstone of South African criminal law and must be upheld throughout the employer's internal investigation process. Any disciplinary action must be based on workplace-related misconduct instead of criminal allegations, and any subsequent action taken must be based on facts and not prejudices related to the arrest.
- Justifiable Grounds for Dismissal: A dismissal must be substantively and procedurally fair. This requires valid justification for dismissal (e.g., operational impact, reputational risk, or a breakdown in trust) and a fair procedure prior to dismissal.
- Assessing the Impact of the Arrest
- Nature of the alleged offence: The severity and nature of the alleged offence and the subsequent outcome are crucial factors to consider when an employer must determine the appropriate disciplinary course to follow. For example, charges involving fraud or theft, which may directly impact the company, may warrant different considerations as opposed to a minor off-duty altercation.
- Operational impact: If an employee is unable to report for duty due to incarceration, this may have a direct impact on business operations. The Labour Appeal Court ruling in Branford v Metrorail Services (2003) 24 ILJ 2269 (LAC) confirmedthat an employer is not obliged to keep a position open indefinitely for an unavailable employee. The case of SACWU and Another v Afrox Ltd (1999) further underlined the importance of assessing the operational impact of an employee’s absence as a primary consideration for employers when dealing with these types of offences in the workplace.
- Reputational damage: The nature of the offence and the subsequent potential disrepute to the company’s reputation should be carefully considered. A high-profile arrest can severely harm the company’s reputation, particularly in industries where integrity, trust and professionalism are critical.
- The trust relationship: The impact on the trust relationship between employer and employee is a critical factor to consider. If an arrest undermines this trust, the employer may have justifiable grounds for dismissal, provided that other substantive and procedural requirements are met.
- Managing The Arrest Effectively:
- Information and Communication: Employers should attempt to gather all relevant information about the employee's arrest, including information related to the charges, date of arrest, and whether the employee is in custody or out on bail. Employers are further urged to communicate with the employee, or their representative if the employee is unreachable, to gain clarity on an expected return date and request any supporting documentation.
- Internal Investigation and a Formal Inquiry: An arrest alone does not justify dismissal, and employers should assess whether the alleged offence has a direct impact on the workplace. In NUMSA obo Fohlisa v Dana Spicer Africa (Pty) Ltd (2018), the Labour Court ruled that an internal investigation and a subsequent fair procedure are necessary before any decision stands to be made.
- Suspension or Alternatives: If the employee’s presence in the workplace poses a risk or their absence significantly disrupts operations, the employer may consider precautionary paid suspension, unpaid leave, or a temporary replacement. Where feasible, alternative measures are recommended before an employer automatically resorts to termination of employment.
- Adequate Documentation: Thorough record-keeping is essential. Employers should document all communication, investigative findings, and ensure that any decisions made are supported by strong rationale to ensure substantive fairness.
- Confidentiality: Employers must handle an employee’s arrest with discretion as to avoid unnecessary risks. Publicising the situation, whether internally or externally, may harm both parties’ reputations, and unwarranted disclosure may expose the employer to legal claims.
- Conclusion
Although an employee's arrest may cause uncertainty, employers are urged to exercise caution before dismissing an employee. Fair procedure and appropriate justification for termination are required by South African labour law. Failure to adhere to these standards places the employer at risk of expensive legal repercussions. Employers should therefore consider all the circumstances surrounding the matter thoroughly before making their decision. A structured and legally sound approach allows employers to protect their business interests whilst ensuring compliance.
