Detained for criminal offence - Abscond rules

[IMHO]

A lady asked this question in our group.

can someone please advise me where I stand in this situation. One of my employees was on leave and during that time he was arrested for house robbery and rape. He is in custody awaiting a trial date. Can I legally dismiss him. I don't want a criminal in my employment.

I immediately thought of abscond rules, but apparently that would not apply?

[sterne.law@gmail.com]

Absconding is not the correct charge, because his absence is not via an intention not to return.
At this stage he is not yet a criminal, innocent till proven guilty.

There are various ways to handle.
Given that he is detained, you essentially freeze the position.
The challenge becomes holding any proceedings because he is not available to attend. The correct process would be an operational requiremnet dismissal.
The absence without leave is tenuous given that it is beyond his control.

[sterne.law@gmail.com]

So an arbitrator has held that the dismissal of an employee while he was in prison was unfair because his whereabouts could have been established. This means that even deserting employees are entitled to an opportunity to persuade the employer that they were absent for good reason. So too was the dismissal of an employee when she returned to work after allegedly being abducted was ruled unfair because the employer had made no attempt to verify the reason for her absence. However, where an employee presented himself for work on being released from prison seven years after his dismissal, the CCMA held that his claim had prescribed. The court ruled that the LRA does not exclude the Prescription Act, which allows a three-year period in which to make a civil claim.

[Dave A]

So the assumption is because the employee is in prison, they are unable to contact the employer and inform them of the problem?

[sterne.law@gmail.com]

Not quite.
These decisions stemmed from dismissals without a hearing or for desertion.
Desertion not correct given absence of intent.
Not calling could be failure to follow procedure, but it is unlikely to warrant dismissal.

It is also important to distinguish between a guilty and not guilty finding.
A dismissal for whatever reason when not guilty will clearly be seen in a different light to a guilty finding.

Whilst on the topic, a criminal court conviction cannot be used as a reason for dismissal. That decision is hearsay.
Yes, that is crazy. So much so that it is called the crazy rule. Criminal court finding can't be used in the civil proceedings.

[Dave A]

Not calling could be failure to follow procedure, but it is unlikely to warrant dismissal.

Not on it's own, and certainly not as a first offence - which seems fair enough.

Whilst on the topic, a criminal court conviction cannot be used as a reason for dismissal. That decision is hearsay.
Yes, that is crazy. So much so that it is called the crazy rule. Criminal court finding can't be used in the civil proceedings.

I'd just love to hear the logic behind that one!

[sterne.law@gmail.com]

There is no logic.
Strictly speaking the court record constitutes hearsay evidence and so is not allowed.
Therefore lets say a person is convicted for culpable homicide or say GBH, the family/victim would still have to rerun ALL the evidence to prove the attack and intent/negligence in order to get a civil claim of damages.
Pretty dumb especially as the criminal conviction requires a beyond reasonable doubt verdict and the civil is the lower balance of probabilities.
In essence it says that we cant trust the court record because it is hearsay...Go figure

[Houses4Rent]

Now I know, that my general opinion that our law system is rotten, is very valid.

[flaker]

Now I know, that my general opinion that our law system is rotten, is very valid.

Is that not the same system that is borrowed from Westminster, & so by deduction the British system meets the same fate

[sterne.law@gmail.com]

This is not our law system.
It evolved from Roman and Roman Dutch.
Add in the English system.
So , the crazy rule is pretty much world wide.

[Dave A]

And yet a legal argument can point to previous judgements made (precedent), and legal precedent is the very foundation of common law.

[claassenattorney]

Legal dismissal is not the case here, as the person is not declared as criminal yet. He is on trial now and the case is going on. You presently cannot take any decision. If the person is detained, you can hold the job for that person for a particular time span. On the other hand, if the person is not found guilty, you should give a second chance. For more legal support, you can take the suggestion from a reputed lawyer who deals with commercial law.