BCHC: Is there a rule against re-employing a dismissed employee?

Written by Jeannette Vlok

Some employers have been faced with the difficult decision of having to decide whether or not to re-employ a dismissed employee or an employee who resigned after having been charged with misconduct.

When there is a change in leadership or an employer’s policy, there may be a difference in opinion as to whether or not the employee should have been charged or dismissed by that employer in the first place.

There may also be a crucial need in a business to find someone with the employee’s specific skillset or experience and the employee may have outscored the rest of the applicants in the recruitment and selection process.

There are cases where accused employees decide not to defend the allegations against them (even if they feel that the allegations are baseless) and where they rather opt for resignation or a full and final settlement.

The question then arises as to whether there are any legal implications in re-employing such an employee and whether the employer has to wait for a certain period of time before doing so.

There is no law which specifically prohibits the re-employment of a dismissed employee in the private sector but the approach in the public service should be considered by employers when deciding whether or not to re-employ such an employee.

With regard to government employers, the Municipal Systems Act, 32 of 2000 and the Public Service Act, 1994 provide that there should be a record of dismissed employees who may only be re-employed after the expiry of a prescribed period.  The length of the prohibition depends on the nature of the misconduct committed. By way of example, dismissals for financial misconduct such as corruption or fraud are considered to be so serious that employees should not be re-employed in any municipality for a period of ten years.

The re-employment of a formerly dismissed employee could jeopardise an employer’s position when dealing with future disciplinary situations involving other employees who are guilty of the same or similar misconduct. These employees will undoubtedly argue that the misconduct does not necessarily permanently destroy the employment relationship and as such they should not be dismissed for their misconduct. A re-employed employee could take the re-employment to mean that the misconduct was not regarded as serious by the employer and commit the same offence. Other employees who were previously dismissed could further be encouraged to apply for vacancies.

Whilst a lapse of time could therefore be used to justify re-employment in some cases, employers should carefully consider whether or not to do so with reference to the specific circumstances in each and every case given the impact that it could have in the future.