Lucas Moeketsi Molehe v Public Health and Social Development Sectoral Bargaining Council and Others

The applicant, Mr Lucas Moeketsi Molehe, was employed since 1980 as a social auxiliary worker by the Department of Social Development in the Free State. In September 2011 he was convicted in a criminal court of bribery and corruption relating to his conduct towards clients of the department and sentenced to four years’ direct imprisonment. He was incarcerated from 14 September 2011 to 2 July 2012. While he was in prison, the employer terminated his services on 14 March 2012 on the basis of incapacity arising from his inability to perform his duties. The applicant referred an unfair dismissal dispute to arbitration before the Public Health and Social Development Sectoral Bargaining Council. The arbitrator found the dismissal procedurally unfair (due to the absence of a disciplinary hearing) but substantively fair, awarding three months’ compensation for procedural unfairness. The applicant then approached the Labour Court to review and set aside the award insofar as it found the dismissal substantively fair and sought substitution with a finding of substantive unfairness.

The review application was dismissed with costs.

The judgment reinforces the principle that dismissal for incapacity arising from imprisonment may be substantively fair depending on the facts, and that labour law should not be applied rigidly. It confirms that even where an employer leads no evidence at arbitration, an employee’s own testimony may suffice to establish substantive fairness. The case also underscores that criminal convictions directly related to an employee’s duties can be highly relevant to assessing fairness in labour disputes.