Criminal prosecution & disciplinary proceedings – Facts may be the same, but the yardsticks differ

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I battled a bit to find a suitable caption for this blog, which encapsulate the different scenarios that could present itself when an employee faces criminal prosecution. The caption I eventually selected may not depict all eventualities as effectively as I would have wanted, but it will at least go some way in doing so.

The first distinction to be drawn is between those potentially criminal conduct the employee is suspected of, which is work related and where such suspected criminal conduct is totally divorced from the working environment.


Scenario 1 – Employee is suspected of committing a criminal offence within context of the working environment

It can, for instance, be the cashier suspected of stealing cash or an employee removing company property from the premises without authorisation.

It needs to be borne in mind that there is, legally, a vast difference between charging and prosecuting a person criminally and charging and disciplining a person within employment context, although the underlying facts may be the same.

Where the former follows the rules and dictates of criminal prosecution, the latter veers towards the rules and dictates of civil prosecution, although we do not use the term “prosecution” within employment related context.

In order to take due cognisance of the above-mentioned difference, I have always advised that, where potential criminal conduct is at stake involving an employee, the following should be done, when at all possible:

  • Do not over-hastily involve the SAPS but create time to firstly deal with the matter as an internal disciplinary matter and only thereafter report the matter formally to the SAPS.

The reason is that once the employee is arrested and held in custody awaiting trial, it becomes logistically a lot more difficult, if not impossible, to handle the matter internally, as the employee is not readily available. This, inevitably, unnecessarily prolongs the finalisation of the matter internally.

  • Refrain from charging the employee with conduct using words and terms which have a criminal definition. It only unnecessarily increases the complexity related to the elements of conduct the employer would be burdened to prove. Example – Where it is suspected that the cashier stole an amount from the cash register and cannot account for this loss, do not charge the cashier with having committed theft (although, technically, theft may have been committed). Rather frame the charge so that it describes the conduct of the employee in layman’s terms and thus in a way which is easy to prove on a balance of probability, without giving it a criminal label. The charge can read as follows: “It is alleged that you removed the amount of R200.00 from the cash drawer entrusted to you without the necessary permission and failed to provide a valid explanation for this loss”.

It stands to reason that only a criminal court has the legal ability and jurisdiction to find a person guilty of a criminal offence. An internal disciplinary hearing simply does not have the required legal stature to try and convict an employee criminally.

Provided that the charge suggested above can be substantiated, satisfying the onus of proof in civil cases, being a balance of probability, a guilty finding within this context is serious enough to warrant a summary dismissal.

Once dismissed, the matter can be reported to the SAPS who will probably arrest the now ex-employee and keep him/her in custody while awaiting trial.

In the criminal case the employee in this example is most likely to be charged with theft and eventually may or may not be found guilty as charged, bearing in mind that the onus of proof in a criminal case is the more onerous onus: beyond all reasonable doubt.

Because, in consequence of my advice above, the employee had been charged with a different charge in the disciplinary proceedings and was found guilty satisfying a different onus of proof, as would have been the case in the criminal proceedings, he/she cannot, upon incidentally being found not guilty in the criminal court, rely on the outcome of the criminal case to regard his/her dismissal in the disciplinary proceedings as unlawful.

Note – Admittedly, not all cases where an employee commits a criminal offence in the workplace, may allow the employer the latitude to stay the arrest by the SAPS until the internal disciplinary proceedings can be followed through to its logical conclusion. Arguably, it is however likely to be possible in the majority of such cases.

Scenario 2 – Employee is arrested on suspicion of having committed a criminal offence which occurred outside of work-related context

In this scenario, the employer has no work-related basis on which to decisively deal with the matter the employee is criminally charged with.

Consequently, the employer has to let the law take its course, while remaining pragmatic about the effect the employee’s arrest and criminal prosecution is likely to have on the employment relationship.

In this regard the Labour Appeal Court case: Samancor Tubatse Ferrochrome v MEIBC & others (LAC) 2010 provided some guidance:

Salient facts of the case

An employee in the rather critical position of Furnace Operator was arrested on 20 May 2006 on suspicion of having been involved in an armed robbery and was held in custody by the SAPS.

After an absence from work for 10 days, he was dismissed (in his absence) for incapacity on 30 May 2006. A letter formally announcing the termination of his services on account of incapacity was delivered to the police station on 06 June 2006.

Following the employees release from custody later, some 150 days since his arrest on 17 October 2006, the employer conducted a post-dismissal hearing (in his presence) on 02 November 2006 and upheld the dismissal, arguing that given the operational importance of the position the employee held and the associated need to have filled the post permanently, coupled with the fact that it was the second occasion in 6 months that the employee was arrested, the dismissal was deemed justified.

Case heard at arbitration

When the case was heard at arbitration, the commissioner found the dismissal to have been substantively unfair in that the reason for the employee’s absence was beyond his control and not of his own making. It was found that the dismissal was also procedurally unfair since no attempt was made by the employer to afford the employee an opportunity to present his case when he was dismissed on 30 May 2006 – thus non-adherence to the audi alteram partem-principle. The employee was reinstated with payment as from 02 November 2006. The employer took this award on review to the Labour Court.

Case heard at the Labour Court

The Labour Court basically endorsed the findings of the commissioner at arbitration. The employer appealed to the Labour Appeal Court.

Case heard at the Labour Appeal Court (LAC)

The fact that the employee was dismissed for “incapacity” was an important aspect of the employee’s defence, arguing that, strictly (legally) speaking, “incapacity”, as referred to in Schedule 8 annexed to the LRA, is caused by either ill health, injury, or poor work performance. Being absent from work and incapable of performing his duties, as in the employee’s case, it was argued, therefore do not constitute “incapacity”.


The LAC, referring to, inter alia, Jabari v Telkom SA (Pty) Ltd (2006)27 ILJ 1854 (LAC), concluded that incapacity extends beyond the narrow confines of the term argued by the employee party and reasonably could include imprisonment and military call-up.

During my tenure in the financial industry, we even included “financial incapacity” as a form of “no fault”-incapacity where an employee’s insolvency, for instance, incapacitates the employee to hold a critical role in the organisation.

In evaluating the substantive fairness of the dismissal, the LAC pointed out that an employer should consider the following aspects factually:

  • The reason for the incapacity;
  • The extent of the incapacity;
  • Whether the incapacity is permanent or temporary;
  • Whether any alternatives to dismissal exist.

Applying this reasoning to the case at hand, the LAC found that the dismissal of the employee was substantively fair in the circumstances, basing its finding on the following:

  • The indefinite nature of the employees incarceration;
  • The skilled nature of the employee’s position, making it imperative to fill the position soon;
  • The difficulty of filling the particular position temporarily;
  • The size of the employer’s organisation, making it unreasonable to expect the employer to keep the position open on an indefinite basis.

The LAC concluded that terminating the employee’s services on the basis of incapacity (in its broader interpretation) was justified.

Regarding procedural fairness, the LAC found that the dismissal of the employee was procedurally unfair, based on the following considerations:

  • While admitting that it may have been difficult (if not impossible) to hold a pre-dismissal hearing while the employee was incarcerated, the employer could have done more to solicit some form of presentation of case from the employee and not merely informing him of his dismissal ex post facto.
  • When the post-dismissal hearing was held, the very same person who presided at the initial hearing, presided, which appeared to be a mere ratification, ex post facto, of the former decision. The employee was not afforded the standard procedural requirement of an impartial decision maker presiding.

The LAC ordered that compensation calculated at 6 month’s remuneration be awarded to the ex-employee for the procedural unfairness he suffered.

Author: Lara Burton – MHA, CPHR, SHRM-CP

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