by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Disciplinary procedures typically have supplementary appeal procedures which make provision for employees who feel unjustly wronged by a disciplinary hearing to appeal the hearing verdict and/or sanction. But what if it is in fact the employer who feels aggrieved on completion of a disciplinary hearing.
It’s not beyond the realms of possibility that an employer objects to a disciplinary hearing verdict or sanction. Chairpersons are capable of rendering disciplinary hearing outcomes which are clearly ill considered. Employees have recourse via the employer’s appeal procedure, but the employer on the other hand is invariably faced with a conundrum when a hearing outcome is objectively inappropriate.
Our Courts have dealt with this state of affairs in the past, and did so once more in the Labour Court matter of Toyota SA Motors (Pty) Ltd v CCMA & 2 others [Case No. D276/10]. This case addressed, inter alia, the fairness, or otherwise, of convening a second disciplinary hearing in respect of the same alleged act of misconduct. Linked to this is the question of whether rehearing a case in regard the same act of alleged misconduct, amounts to double jeopardy.
In this case, in essence, the employee was originally issued a written warning for the misconduct he was found guilty of in an original disciplinary hearing, and subsequently dismissed when found guilty of the same offence in a subsequent rehearing of the case.
The employee deemed this to amount to double jeopardy. The CCMA Commissioner at the subsequent arbitration hearing agreed with the employee and held that his dismissal was substantively unfair on grounds that the employer had no right to rehear the case.
The Labour Court held, on the other hand, that “the test for determining when a fresh enquiry can be held is a matter of fairness and not whether exceptional circumstances exist”, or has been held prior “a second enquiry would be justified if it would be fair to institute it”.
In the Labour Appeal court case of Branford v Metrorail services (Durban) & others [2004], the Court held that “.. (i)t would manifestly be unfair for the company to be saddled with a quick ill informed and incorrect decision of its employee who misconceived the seriousness of the matter and hurriedly took an inappropriate decision leading to an equally inappropriate penalty.
That’s not to say that employer’s may simply rehear disciplinary hearings until they achieve a pre-determined outcome. It is also possible to incorporate a provision in appeal procedures for management to be entitled to appeal hearing outcomes. This may go some way to providing a solution for employers when faced with ill considered hearing outcomes.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jul 23, 2018 | Discipline & dismissal
All cases of alleged unfair dismissal are assessed on the basis of two criteria, substantive (which we look at next week) and procedural fairness.
Whilst an ex-employee’s remedy for procedural unfairness does not include reinstatement, what is available to an employee deemed to have been procedurally unfairly dismissed is financial compensation up to twelve months salary.
So it makes sense to ensure that a dismissal is not only effected for a fair reason, but has also been executed in a procedurally fair manner; but what does this mean? In short, it’s the ‘how’ of disciplinary hearings.
Well, to begin with, employers are required to ensure that they comply with their own disciplinary procedures. Put simply, employers must comply with any disciplinary procedure which has been compiled in-house and been profiled to all staff as the company Disciplinary Procedure. Any deviation will typically render any dismissal (procedurally) unfair, regardless of the substantive merits of the case.
Procedural fairness is a critical requirement of all disciplinary hearings in light of the fact that common law requires that any employee accused of committing an act of misconduct (ie: a blameworthy act or omission), must be heard before a verdict is arrived at.
It has been submitted that it stands to reason that an employee’s version must be known by the hearing chairperson prior to his or her fate being determined.
Written charges must be issued to an alleged offender in a form and language s/he understands; if interpreters are required for this purpose then so be it.
Next, the employee must be afforded sufficient time to prepare for a hearing, normally viewed as no less than forty eight hours written notice of the hearing.
The chairperson should be objective, with no vested interest in the verdict and/or sanction. Chairperson’s should bear in mind that although they essentially have unfettered authority and powers in a disciplinary hearing, their verdict and/or sanction may well need to withstand independent scrutiny by a (CCMA or Bargaining Council) Commissioner should the outcome be subsequently challenged as having been unfair.
Decisions taken by chairperson’s need not be perfect, but they must be reasonable and rationale.
Whilst a disciplinary hearing procedure need not be conducted in an overly technical manner, certain procedural protocols must none the less be observed. For example, witnesses should testify and be exposed to cross-examination.
Guilt is to be determined on the ‘balance of probabilities’, which simply means that the chairperson must determine whether or not the employer complainant has proved, or not, that the employee is ‘probably’ guilty of the alleged misconduct.
Should the employee be found guilty, an appropriate sanction must be selected. Sanctions are selected on the basis of the following criteria, (1) the gravity of the misconduct in question, (2) disciplinary code guidelines, (3) mitigating factors, and (4) aggravating factors.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Miscellaneous
On occasion, employees seek to withdraw their resignation.
The facts of the case were, in the main, common cause.
The employee had an altercation with her manager in a store, after which she submitted a letter of resignation giving her employer 24 hours notice that “I will be resigning”. The employee was required to give two weeks notice, but had in fact only given the employer twenty four hours notice in her letter of resignation.
However, the employee then reconsidered her position and withdrew her resignation stating that her letter of resignation had not been officially accepted by the employer, and that it had never been her intention to resign.
The employer did not accept the employee’s retraction of her resignation, after which the employee referred a claim of unfair dismissal to the CCMA by virtue of the fact that the employer would not permit her to resume her duties after withdrawing her resignation.
The employer referred the matter to the CCMA on two grounds (1) she had withdrawn her resignation within her notice period when she was still an employee and (2) that the employer was obliged to formally accept or reject her resignation, and because the employer had not done so, she was entitled to withdraw such notice.
The Commissioner held that the employee was not unfairly dismissed and that the employer was indeed entitled to accept or decline the employee’s withdrawal of her resignation.
With specific reference to an employment contract, it was held that “either party to a contract may resile from the contract” and that “withdrawal from a contract by one party is a unilateral action which does not require the consent of the other party”. As such, the employer was not required to accept the employee’s resignation in order for the resignation to be or remain valid.
Or as the Commissioner noted further “The employer is not required to confirm whether in fact it accepts the employee’s notice of termination. The notice itself is a fait accompli. It does not, in my view, require acceptance”.
The employee’s revocation of her written resignation was held therefore not to have been binding on the employer. It follows that the employer’s refusal to permit the employee to resume her duties after withdrawing her resignation, did not constitute a dismissal, let alone an unfair dismissal.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Miscellaneous
Dismissals that occur after normal retirement age present employers with a specific set of circumstances that differ markedly from all other forms of dismissal.
Section 187(2)(b) of the Labour Relations Act states that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.
Predictably, the Commission for Conciliation, Mediation and Arbitration has been required to conciliate and adjudicate disputes relating to post retirement-age dismissals.
The dismissal of an employee who is employed beyond normal retirement date does in fact constitute a dismissal per se, but is deemed to be a termination of the contract of employment due to the effluxion of time, which is fair.
A retirement date may be agreed. However, there may be no agreement on the normal retirement date. In such circumstances, sixty five is normally deemed to amount to a generic normal retirement date.
In the CCMA arbitration case of SASBO versus Khayalethu (Case Number FS822) the 70 year-old employee argued that she was dismissed and pensioned by the company because of age, and that this constituted age discrimination as provided for in section 187(1)(C) of the LRA.
She added that the allegedly unfair age discrimination had also amounted to an automatically unfair dismissal.
The Commissioner disagreed with the employee stating in the arbitration award that section 187 of the LRA provided for post retirement-age dismissal.
This issue was further addressed in the CCMA arbitration matter of Freda Theunette Maritz versus Pepps Mokopane Primary School (Case Number NP6559).
The employee was challenging the fact that she was compelled to retire on the date on which she reached normal retirement date.
The employee had in fact wanted to work beyond this date, as is often the case.
The commissioner found that the dismissal was fair stating that a contract of employment may be terminated where the employee has reached his/her normal retirement age (see Harris versus Bakker & Steyger 1993 14 ILJ 1553).
“Although I accept that in terms of section 186(a) of the LRA of 1995, the employer dismissed the employee, I am however of the view that this was a normal termination of the employee’s employment by effluxion of time,” the commissioner said, and went on to quote section 187(2)(b) of the LRA.
The dismissal of elderly employees is always likely to raise emotions, particularly when such employees are compelled to work to sustain themselves.
Up until recently, it was not uncommon for the employment of post-retirement age employees to come under threat during retrenchment exercises.
A mandatory retirement age cannot be introduced, or enforced, by an employer without the employee’s consent. Predictably, employees must be fully consulted when a decision is to be made in the absence of a confirmed normal retirement date or age.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Miscellaneous
Our firm is frequently required to guide clients in the drafting of employment contracts.
As is to be expected, the wording and structure of an employment contract is extremely important. All too often, employers and employees regret not having paid enough attention to the provisions of an employment contract.
Certain basic content is important. For example, the starting date and hours of work; if overtime is compulsory, it must be confirmed in the employment contract.
The employee’s title and responsibilities should be clearly stated.
Employers have a statutory obligation to include all information relevant to the various categories of leave, including annual leave, sick leave, family responsibility and maternity leave.
The inclusion of a clause confirming that the employee is required to complete an initial probationary period is advisable. Probationary periods are recognized in law, and should be of a period long enough for the employer to determine whether the employee is capable of meeting all requirements of the job.
The duration of a probation period can be as long as is reasonable necessary to determine a new recruits suitability, although the standard norm presently is a six-month probation period. The probationary employee’s performance should be regularly assessed, and feedback on performance provided, throughout the probation period.
In addition, probationary employee’s, as is in fact the case with post-probation employees, should be provided reasonable training, guidance, support and counseling in the performance of their duties.
Probationary employees may be dismissed on grounds of poor work performance during, or at the end of the probationary period; a performance hearing is however required to be held prior to any such dismissal.
Probation periods may be extended if the employer is uncertain whether the probationary employee has met all of the job requirements to their satisfaction.
It is important to note that probation is a new employee concept, and does not apply to existing employees who are promoted.
It is also, on occasion, prudent to obligate employees to undergo polygraph tests and searches of their belongings and persons.
The nature of the employer may even require the employer to include a confidentiality agreement regarding ownership of all company documents and information both during, and on termination of, employment.
Provision should be made for the employee to have access to, and be educated on, company policies, rules and procedures. It may well become important at a later date, to prove that the employee had prior knowledge of a company rule if, for example, it is subsequently alleged that the employee is guilty of having breached the rule.
Finally, notice periods must be specified. Many employers simply apply a thirty day, or calendar month, notice period. The Basic Conditions of Employment Act stipulates that a minimum of one-week notice period applies during the first six months of employment, two weeks in the second month of employment, and four weeks thereafter.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Law of Evidence
Hearsay evidence is, in the main, inadmissible, and is best described as evidence tendered by an individual who relays evidence which s/he did not personally witness with his/her own eyes or senses, but heard from someone else.
It is with good reason that hearsay evidence is treated in this way, as hearsay evidence cannot be tested by way of cross examination, and is furthermore typically unreliable as the witness tendering the hearsay evidence may have mistakenly made an error in the interpretation of that communicated to him or her by the source of the evidence.
Hence the need to handle hearsay evidence with extreme caution.
However, that’s not to say that there are not exceptions to this rule; on the contrary, there are.
Section 3 of the Evidence Amendment Act provides that hearsay evidence may in fact be admissible if it is in the interest of justice to do so and certain conditions are met. The Labour Court addressed this tricky area of law in the matter of Goitsimang David Mosima v SAPS & 3 others (Case Number J1031/09).
The applicant, at a prior CCMA arbitration hearing, had been found guilty of soliciting and receiving a R700.00 bribe from two members of the public who happened also to be illegal immigrants, with the outcome being that his dismissal was upheld by the arbitrator. He now sought to have this decision reviewed on grounds that the arbitrator had erred in accepting the hearsay evidence, primarily on the basis that the two members of the public did not testify at the arbitration hearing.
The Commissioner relied heavily on the provisions of the Evidence Amendment Act relating to the exceptions to the hearsay rule, and especially noted that the applicant’s review application required the court to consider the reasonableness of the arbitrator’s decision, and not the correctness of that decision, as would be the case in appeal proceedings.
It was held that “in the first instance the criticism that the arbitrator erred in basing his decision on hearsay evidence bears no merit”.
The provisions of Section 3 of the Evidence Amendment Act were deemed to have justified as the two members of the public whose evidence was admitted in their absence, was justified as they could not be found to testify at the arbitration hearing because they probably had been deported back to their countries of origin.
The applicant’s own version had also in fact corroborated the heresy evidence in that he had acknowledged receiving R700.00, in an envelope, from the two members of the public in question.
The admission of hearsay evidence should none the less be handled with caution, given that in doing so, unreliable evidence could be admitted that does not withstand scrutiny at the CCMA, Bargaining Councils or the Labour Courts.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Employment Equity
One of the most eye-catching amendments to recent amendments to labour legislation was the enactment of section 6(4) of the Employment Equity Act, which provides for equal pay for equal value.
The Draft Code of Good Practice on Equal Pay for Equal Value states that “Section 6(4) of the Act, which came into effect on 1 August 2014, provides that a difference in terms and conditions of employment between employees of the same employer, performing the same or substantially the same work or work of equal value, that is directly or indirectly based on any one or more of the grounds listed in sub-section(1) or on any other arbitrary ground, is unfair discrimination”.
The recent Labour Court case of Pioneer Foods (Pty) Ltd v Workers Against Regression & 2 others [C687/15] dealt with the question of whether, or not, employers were entitled, or indeed permitted in law, toremunerate drivers differently based upon their length of service. Perhaps more particularly, this case addressed the question of whether length of service was prohibited, arbitrary, unfair discrimination in the context of equal pay for work of equal value.
The Court was clear in finding that “Nothing in the EEA precludes an employer from adopting and applying a rule in terms of which newly appointed employees start at a rate lower than existing long-serving employees. This applies whether or not the newly appointed employee had previous substantial experience, whether with the employer concerned or some other employer”.
Interestingly, the judgment continues that “It also applies whether or not the employee had, in the past, rendered services to the employer concerned via a labour broker”.
In this vein, the judgment referred to the Constitutional Court, which has held previously that “it is impossible to regulate a modern country without differentiation and without classifications which treat people differently and which impact on people differently”.
So, the Labour Court has confirmed that equal pay for equal work of value legislation does not preclude employers from discriminating, fairly between employees of various lengths of service, by remunerating longer serving employees at a higher rate than their peers with shorter service.
Even greater emphasis was placed on this by the Labour Court in this judgment when the judgment continued that “Differentiation in respect of terms and conditions of employment on the basis of length of service with the employer concerned is … a classic example of a ground for differentiation which is rational and legitimate and, indeed, exceedingly common … there is quite manifestly a rational connection between using length of service and loyalty of existing employees”.
Interestingly, in conclusion, the judgment noted that “Equal pay for work of equal value is a different concept from equal pay for the same work”.
Besides, the Code of Good Practice on Equal Pay for Equal Value itself “recognises length of service as a factor justifying differentiation in pay”.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Employers frequently complete disciplinary hearing charge sheets poorly without, for example, properly outlining the specific components of the allegations being levelled against an employee. Predictably, the entire disciplinary hearing process becomes contaminated should allegations of misconduct against an employee not be properly clarified in writing. There are a number of reasons for this.
To begin with, employers often accuse employee’s of acts of misconduct which, in fact, cannot be proved. An employer’s assumptions or suspicions are of no value if they cannot be proved on the balance of probabilities as is required.
Secondly, terminology is used which is, on occasion, used inappropriately. For example, acts of misconduct are described as being of a gross nature when in fact the employer does not appreciate what distinguishes so-called gross misconduct from ordinary misconduct. In this regard it is not uncommon for an employer to compile an allegation of gross insubordination when in fact the employer cannot distinguish between ‘gross’ and ordinary insubordination.
The amount of information contained in a misconduct “charge sheet” is normally referred to as the “particularisation”. This frequently leads to disputes which focus on the actual amount of information an employer must include in a “charge sheet” so as to enable the alleged offender to comprehend the allegations against him’/her so that they are in a position to properly prepare a defence.
If an employee is of the view that the employer has in fact not furnished them with enough information in the charge sheet to prepare a defence, such employee may request that they be furnished with further “particularisation” in respect of the allegation(s).
The CCMA and Labour Court have been required to address numerous disputes relating to alleged insufficient particularisation of misconduct charge sheets in recent years, as indeed was the erstwhile Industrial Court prior thereto.
In short, Schedule 8 of the LRA informs parties that charges should be levelled “in a form and language that employees can reasonably understand”. Case law supplements this by providing that allegations must inform the alleged offender of what s/he is alleged to have done (or not done as the case may be) and the period over which he is alleged to have committed the offences.
In the CCMA arbitration case of SACCAWU obo Nkambule & Discom Ermelo Clicks New Holdings Ltd (Case Number: MP2112-02) the commissioner held that “The charges should be specified with sufficient particularity to enable the employee to answer them. This does not mean, however, that the charges have to be drawn up with the precision of an indictment in a criminal trial. It is enough that the employee be able to prepare his or her defence. (See Police & Prisons Civil Rights Union v Minister of correctional Services & others (1999) 20 ILJ 2416 (LC))”.
In short, the employee should not be expected to have to speculate what the precise allegations are being levelled against them.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Punctuality is a basic fundamental employment obligation. It’s taken as a given that when an employee enters into an employment contract with an employer, the employee is able to attend work on time. Two of the most basic of common law employment obligations which accrue to employees are come to work on time, and come to work often!
That’s not to say of course that unavoidable circumstances are unimportant. On the contrary, if an employee can prove that they were prevented from arriving at work on time for reasons beyond their control, the employer cannot treat such late-coming as being an act of misconduct.
Ordinarily, late-coming is a minor offence which should be responded to by employers with gradual, progressive discipline. Of course, if an employee arrives for work substantially late, it may well warrant dismissal even though it may be the first instance of late-coming, especially if the employee has short service and shows no remorse.
Our Courts have endorsed dismissal for a pattern on late-coming. In CEPPWAWU obo Motshene v Sandoz SA [Arbitration Case No. CHEM305-09/10] it was held that “ … the employee must not only come to work – he/she must come to work on time, and be at the workstation during the agreed hours – even if the employer has no work for him to do.”.
The Commissioner continued that “ .. when an employee fails to correct his conduct .. where his late-coming continued, it undermines the employer’s trust in him/her”. The employer cannot run a business when he cannot rely on the Applicant to be at work on time. This would in turn, break down the employment relationship. It is therefore unreasonable, under the circumstances, to expect the employer to carry on in such an employment relationship.”
Poor time-keeping would typically justify a verbal warning for a first offence, written warning for a second offence, final written warning for a third offence, and dismissal thereafter.
Employee justifications for late-coming must be assessed whether, or not, the employee can be deemed to have been at fault for the late-coming. Punctuality cases are, to some extent, easier to deal with that many other cases of alleged misconduct in that the employer’s evidentiary burden is minimal as the late-coming is easily identifiable.
Whilst employee’s may be faced with lengthy commutes to work, and increasingly frustrating traffic congestion, this does not ordinarily justify late-coming, unless of course a single unforeseen traffic accident for example hinders an employee’s ability on a given day to arrive at work on time.
More often than not, progressive discipline is headed by employees and punctuality materialises before the need to dismiss.
Follow Tony on Twitter at @tony_healy
by Tony Healy | Jun 23, 2018 | Discipline & dismissal
Many employers will have been frustrated at times by employees presenting medical certificates covering the day or days on which the employee is required to attend a disciplinary hearing. It is of course quite possible that the employee is genuinely ill, and must be afforded time to recover from their ailment prior to attending a disciplinary hearing. However, on occasion, such medical certificates are merely an attempt to frustrate the continuation of a disciplinary hearing.
The question which rises in these circumstances is, can an employer continue with a disciplinary hearing when the employee being charged with misconduct has been booked of sick by way of an apparently legitimate medical certificate?
The conventional wisdom has been that the production of a medical certificate obliges the employer to put the disciplinary hearing on hold. The Supreme Court of Appeal (SCA) judgment, Old Mutual v Gumbi [2007] SCA, suggests that there are circumstances when an employer can justifiably proceed with a disciplinary hearing in the absence of an employee who has been booked off sick.
SA case law abounds with authority confirming that an employee who fails to take advantage of such an opportunity to be heard, cannot subsequently claim that their dismissal was procedurally unfair.
The Old Mutual SCA judgment addressed this very issue, concluding that disciplinary hearings may well, in certain circumstances, justifiably proceed in the absence of an alleged offender who has, at face value, a medical certificate booking them off sick for the day(s) on which the hearing is scheduled to proceed.
In this case, the employee was summonsed to a hearing after having become abusive toward and threatening to assault his superior when he was asked to explain claims for subsistence and travelling expenses.
The employee produced a medical certificate before the hearing which was, none the less, held in his absence. The employee was dismissed. However, Old Mutual reinstated the employee with a view to recharging him, after his representative made representations motivating that the dismissal be overturned, due to the fact that the employee could not attend the hearing due to illness.
The next day, the employee was issued notice to attend a fresh hearing.
After an adjournment, the employee furnished the hearing chairperson with a medical certificate which referred to “tension headache and enteritis”.
The chairperson adjourned the hearing for an hour to enable the employee to recover from his alleged headache. The employee and his representative refused to return to the hearing as they were of the view that the medical certificate entitled them to an adjournment.
The chairperson disagreed, and found the employee guilty in his absence and imposed the sanction of dismissal.
The judgment concluded that the employee “wanted to have the hearing aborted so as to prevent the fulfilment of a … fair disciplinary hearing”.
The dismissal was held to have been fair in that the employee had frustrated the fulfilment of the employer’s procedural fairness obligations.
Follow Tony on Twitter at @tony_healy
