by Tony Healy | Dec 12, 2018 | Case Law
To what extent is a job applicant obligated to reveal to a prospective employer, that they have a criminal record? Is a job applicant obligated to reveal to a prospective employer, that they have a criminal record? To what extent are employers able to fairly discriminate against job applicants with criminal records?
These are vexed questions which employers, and indeed employees, face on occasion.
To begin with, there is no doubt that employers should have recruitment and selection policies and procedures which clearly obligate job applicants to reveal all information pertinent to their application, and highlighting that any material omissions in a CV or application form, would place any subsequent employment with the company at risk.
Best practice in this regard would, for example, include the incorporation of a declaratory in the employer’s application form, that the job applicant has not omitted any information that would be material to the employer being in a position to make a rationale decision regarding the employability of the applicant, in full knowledge of the fact that the employer will have recourse, should material non-disclosure on the part of the applicant come to light.
This was precisely the issue addressed in the Cape Town Labour Appeal Court (“LAC”) judgment in G4S Secure Solutions SA (Pty) Ltd v Commissioner Anthony Ruggiero & others (Case Number CA2/2015).
The employee, a security guard, had been employed by the employer in 1996. At that time, he was asked in a written application form “have you ever been convicted of a criminal offence?”. The employee indicated that he had not, and he was subsequently employed by the employer.
However, fourteen years later, on 10 July 2010, the employee applied for an internal promotion, and after a criminal check had been conducted, it was established that the employee had two previous criminal convictions. One for rape when he was seventeen years old, for which he received six lashes, and another for assault with intent to do grievous bodily harm, for which he paid a fine of R200.00.
The employer responded to these revelations by issuing the employee a notice to attend a disciplinary hearing, alleging “misrepresentation and/or dishonesty concerning an application for employment and/or breach of PSIRA Regulations Code of Good Conduct”. The employer’s disciplinary code specified that an offence of “dishonesty concerning an application for employment … occurs where information provided in support of an application for employment is subsequently found to be false, and such information has a material effect on the employee/employer trust relationship”.
At the disciplinary hearing, the employee, inter alia, stated that he did not know that he had a criminal record as he had not gone to jail. The employee was found guilty, and dismissed.
The employee challenged the fairness of his dismissal at the CCMA, originally seeking reinstatement, and subsequently amending his remedy sought, to compensation. At the CCMA arbitration hearing, the Commissioner was “not convinced that the (employee) contravened the rule” or, as noted in the LAC judgment “that he had misrepresented himself in his 1996 application for employment given that he was not aware that he had a criminal record at the time”.
Importantly, the employee also argued that he could not be found guilty of a contravention of the PSIRA Code of Conduct, as it had only come into effect more than 10 years after his convictions.
The Commissioner continued that he found it plausible that the employee had not willfully misrepresented the facts. The Commissioner held that the dismissal of the employee was therefore substantively unfair, and held that the employee was to be reinstated, with two-months compensation.
At the subsequent Labour Court review, the Labour Court found it “difficult to understand how the arbitrator could reasonably have concluded the (employee) was unaware of the status of his criminal record and could have denied having any criminal conviction”. However, the Labour Court further held that whilst the employee had committed the misconduct, his dismissal was unfair, and ordered retrospective reinstatement.
The LAC held a different view on this case at the appeal. The LAC ordered that the appeal was successful, and that the dismissal of the employee was in fact substantively fair.
According to the LAC, “The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely”.
The judgment continued that “A conviction of rape and assault is antithetical to employment in the position of a security guard given the nature of that position”.
Finally, the LAC noted that our courts have reiterated that whilst long service is ordinarily a compelling mitigating factor when contemplating a sanction, “there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal … one such act of misconduct is gross dishonesty”.
by Tony Healy | Dec 12, 2018 | Industrial Action
The right to strike is recognised in most so-called western democracies, and is considered to be a necessary element of a trade union’s options when a deadlock is reached with an employer on various agenda items such as wage negotiations.
Some commentators would argue that the right to strike is necessary and entirely legitimate, in order to address the in balance of power between employers and employees in collective bargaining, and other dispute areas. This world view justifies this position on grounds that socio-economic forces disadvantage labour, and therefore warrant a right to strike apply pressure on employers to acquiesce in certain labour disputes.
The right to strike in South Africa is enshrined in the Consitution, which states, at section 23(2)(c) that “Every worker has the right to .. strike”. It is however, not an unfettered right, and our law obligates trade unions to comply with a mandatory pre-strike procedure before a strike is ‘protected’.
So, what is a strike? Section 213 of the Labour Relations Act stipulates that a strike “means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory”.
One frequently still hears erroneous references to ‘legal’ and ‘illegal’ strikes. The notion of ‘legal’ and ‘illegal’ strikes ended approximately twenty-three years ago, with the introduction of the Labour Relations Act, to replace the then ‘old’ Labour Relations Act.
Simply put, strikers will be protected from dismissal if the trade union has complied with two relatively straight forward mandatory pre-strike procedures. Firstly, the trade union must allow for a conciliation process, typically under the auspices of the CCMA or a Bargaining Council, and thereafter, if the conciliation/mediation process fails to resolve the dispute, give the employer forty-eight hours’ written notice of its intention to strike.
If these two mandatory steps are followed, the strike is ‘protected’, and strikers are then protected from being dismissed for participating in the ‘protected’ strike. On the other had, should these two mandatory pre-strike steps not be followed, a subsequent strike would be ’unprotected’, meaning that the strikers are not protected from being dismissed for participation in the ‘unprotected’ strike.
Employers typically, and predictably, treat both protected and unprotected strikes as unpaid; no work no pay.
Section 65 of the Labour Relations Act places certain limitations on the right to strike. For example, striking is prohibited in the event that the issue in dispute can be referred for adjudication by way of arbitration or the Labour Court.
Strikes are also prohibited in so-called essential services. The International Labour Organisation recognises that it is proper to prohibit strikes in essential services, as strikes essential services would harm the population, and be detrimental to life, health and safety. The Essential services Committee, established per the provisions of the Labour Relations Act, have declared various essential services to include air traffic control blood transfusion services and power generations institutions, such as Eskom.
Even though strikers in a protected strike are protected from being dismissed for participating in the protected strike, they are not protected from being dismissed for strike-related misconduct. For example, and striker in a protected strike who assaults a non-striker, will still be liable for dismissal on grounds of misconduct.
Strikers participating in an unprotected strike can be interdicted by the Labour Court. However, the dismissal of unprotected strikers would be unfair if the unprotected strike was in response to some or other unjustified act on the part of the employer.
In the absence of such unjustified employer conduct, unprotected strikers can be disciplined for misconduct, and potentially dismissed if they fail to return to work after receiving reasonable ultimatums from the employer to do so. That said, the mass dismissal of unprotected strikers requires much contemplation given the industrial relations consequences of such a mass dismissal.
What are more commonly referred to as sympathy strikes, are referred to as secondary strikes in the Labour Relations Act. In order for a secondary strike itself to be protected, it must have the capacity to influence the employer in the primary strike, and the seven days’ written notice must be served prior to the commencement of a secondary strike.
by Tony Healy | Dec 1, 2018 | Discipline & dismissal
You’ll often find the terrible twins, insubordination and insolence, hand in hand.
Employees have a common-law obligation to subordinate themselves to the legitimate authority of their employer, and to the extent that they refuse to do so, they are insubordination.
In Palluci Home Depot (Pty) Ltd v Herskowitz and Others (1989) 10 ILJ 311 (IC) the Court described insubordination as “The offence of insubordination in the workplace has, in this regard, been described by our Courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority. Whereas in some cases defiance of an instruction may indicate a challenge to the authority of the employer, this is not so in every case. insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority.”
In Wasteman Group v South African Municipal Workers Union (2012) 8 BLLR 778 (LAC), the Labour Court held that there was a clear distinction between insubordination which did not warrant dismissal and gross insubordination which attracted dismissal. It has frequently been held that the test for ascertaining whether misconduct amounted to gross insubordination, rather than simple insubordination, was whether the conduct was serious, persistent and deliberate.
The Labour Appeal Court in Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC) held that “In our view a disregard by an employee of his employer’s authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master‑servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship… “.
Gross insubordination was also addressed in Polyoak Packaging (Pty) Ltd v Siquibo NO and Others [unreported: case number 236/2008], it was said that “As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place [a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place [b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly, [c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal”.
Insolence is disrespectful conduct, sometimes described in our courts as “a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) which cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority”; insolence has also been described as repudiation by an employee of the employee’s duty to show respect. Additionally, “unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal”.
When all is said and done, employers should include recommended sanctions for both insubordination and insolence in their disciplinary codes. Insolence is generally viewed as a less serious act of misconduct than insubordination.
by Tony Healy | Nov 8, 2018 | Miscellaneous
On 18 September 2018, the Constitutional Court handed down its much publicised cannabis judgment which has far reaching implications in regards the private cultivation and/or use of cannabis. This is the Minister of Justice and Constitutional Court Development and Others v Prince (Clarke and Others intervening) (CCT108/17) [2018] ZACC 30.
The crux of the judgment is encapsulated in paragraph 109 thereof, which states that “the effect of the above reading-in is the following: (a) an adult person may, use or be in possession of cannabis in private for his or her personal consumption in private, (b) the use, including smoking, of cannabis in public, or in the presence of children or in the presence of non-consenting adult persons is not permitted, (c) the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted, and (d) the cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offense”.
As such, the use, possession and cultivation of cannabis is now permitted in one’s home or a ‘private dwelling’.
This has widespread implications for society at large, including the workplace. This judgment should not be interpreted as a legalization of cannabis. On the contrary, it is a judgment which decriminalizes the cultivation, possession and use of cannabis in private.
As far as the workplace is concerned, this judgment has important workplace-related implications, more especially in the areas of misconduct, incapacity, and occupational health.
Employers would be well advised to review existing disciplinary and drug related policies to ensure that this judgment has no negative impact on the workplace. This would include a reconfirmed prohibition on the use of drugs (including cannabis) and alcohol, confirming that usage would amount to summary dismissal. Important in all matters of this nature is the existence of a rule, and proof that employees have knowledge of the rule.
It should be remembered that the mere presence of a drug in an employee’s bloodstream does not as and of itself, prove that the employee is under the influence of the drug in question. The same applies to alcohol. What has to be determined is whether the consumption of a drug, for example cannabis, has resulted in the performance, conduct and behavior of the employee being impeded, to the extent that they are a safety risk to themselves and/or others, and are incapable of meeting their minimum performance requirements.
Section 7(1) of the Employment Equity Act (55 of 1998) addresses medical testing at work, and stipulates that “Medical testing of an employee is prohibited unless (a) legislation permits or requires the testing; or (b) it is justifiable in the light of medical facts, employment conditions, social policy, the fiar distribution of employee benefits or the inherent requirements of the job”.
Given key employer occupational health and safety obligations, an employer would be compelled to test an employee suspected of being under the influence of cannabis, or any drug or alcohol). The safety of employees cannot be compromised.
Employer policies relating to the use, possession and cultivation should be clearly drafted, confirming that the workplace is not a ‘private dwelling’. Such policies should also clearly confirm that employees who are, for example. Cannabis dependent, should approach the employer in confidence, so as to initiate a process which recognises this dependency as a case of incapacity, rather than misconduct.
In addition, especially in workplace environments which are inherently dangerous, emphasise the fact that the use, possession and cultivation of cannabis amounts to an ct of gross misconduct, sanctionable by way of summary dismissal.
In short, it would be prudent to update existing drug policies and disciplinary codes to accommodate this recent Cannabis judgment. The prohibition on the use, possession and cultivation of cannabis at work is premised upon the fact that a workplace is a public, not private, place, and employer’s would be well advised to emphasise this in amended policies.
So there we have it. This judgment is not a license for employees to use, possess and cultivate cannabis at work.
by Tony Healy | Nov 7, 2018 | Discipline & dismissal
It should go without saying, that employees have an absolute employment obligation to be honest at all times, in the course of their employment with an employer. This even extends to employees furthermore having an obligation to expose the dishonest acts of their colleagues, which they have knowledge of, and the extent that it can proved that they turned a blind eye to a colleague’s dishonesty, that employee is guilty of so-called derivative misconduct.
Dishonesty also goes by many euphemisms. In disciplinary hearings, employees occasionally state that they were ‘borrowing” the item, with every intention of returning it to the employer, or that they removed the item inadvertently. In a recent case, the employees adopted yet another euphemism, namely that they had not in fact stolen the items, but had, improbable as it sounds, taken them without permission.
This was the case in NASECGWU obo Seleka, J & 1 other v Lime Acres Family Store (CCMA Arbitration Award number NC1400-15).
The allegation levelled against the two employees was, quite simply, “stealing pies from the” employer.
According to the employer, a manager “investigated the matter where the Applicants were charged with stealing pies from the Respondent. The Applicants were busy baking pies and they appeared in the video footage stealing pies. The Applicants were called in for questioning and they were given a chance to tell the truth before they were shown the video footage, but they denied stealing. Only after they saw the video camera, they admitted to have eaten the pies and indicated that they were hungry. The Respondent indicated that the Applicants were dishonest and their work was to bake pies, their dishonesty broke the trust relationship. The Applicants did not ask permission to eat and the video showed that they have been stealing on a daily basis from 25 to 28 April 2015. The video could only be reversed to 25 April 2015, the Respondent indicated that there are possibilities that the theft was happening even prior to the dates in question”.
It was further testified to by the employer that the employees pleaded guilty. At the hearing, it was acknowledged that “during the interviews the Applicants were told that they have a responsibility of reporting theft when they witness it at the workplace. They knew that theft was a serious offence. He indicated that taking something which belongs to someone else without the person being aware of it and using it is theft and that is what the Applicants did”.
However, the employees submitted that they were unfairly dismissed for theft. On the contrary, and somewhat absurdly they “agreed that they took the (employer’s) pies without asking and ate them … but argued that their actions were not that of theft”.
It gets more interesting. They then went on to testify that “they pleaded guilty at the disciplinary hearing for taking the (employer’s) property without consent but not for theft”. But the Applicant’s had further, even more absurd testimony. They continued that “theft is when someone take someone else’s property and leave the premises with it. They did not leave the premises, but ate the pies inside the premises and therefore, they were not guilty of theft”.
SAs far as the company rule prohibiting theft was concerned, they stated that “there was no rule at the workplace about theft and that the code of conduct is available at the workplace, but is placed at a high place by the wall and they could not read it”, yet continued that “since this was a first offence, dismissal was harsh and a written warning would have been fair”.
Unsurprisingly, the Commissioner held that “It is the Applicant’s case that they took the Respondent’s goods without permission and consumed the goods. It is also the Applicant’s testimony that their intention for taking the pies was to consume them. The Applicants acknowledged in their evidence that what they did was wrong, they were aware that their conduct was wrongful. By taking the pies without permission and consuming them, the Applicants permanently deprived the Respondent from the use and possession of its property, which are the pies. It is clear that the charge sheet indicated theft as a charge, the Applicants in their evidence confirmed that they pleaded guilty. It is unreasonable for the Applicants to say that they pleaded guilty for taking the goods without permission, but not for theft while they admitted to have intended to consume the Respondents goods”.
In conclusion, it was held that “From the evidence given at the arbitration, it is clear that the Applicants did not take the Respondent’s goods only for one day, but this act happened consistently over a period of a week. During arbitration, the Applicants did not show any sign of remorse and insisted that they had a reason for taking the Respondent’s goods in that they were hungry. The action of eating the Respondents? pies without permission, while in a position of trust is sufficient to constitute theft. The action of the Applicants had an element of dishonesty for which dismissal is an appropriate sanction”.
by Tony Healy | Nov 6, 2018 | Discipline & dismissal
Probation periods are dealt with in some detail, in Section 8 of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal). To begin with, it is imperative that employers include a probation period in contracts of employment, and equally imperative that the process of probation is properly managed, so as to ensure that all the benefits from including a probation period in the employment contract, are realized.
Probationary periods are only applicable if they are specifically referred to in a contract of employment. Probation periods ought not automatically therefore form part of an employment relationship.
Section 8 of the Labour Relations Act begins by stating that “an employer may require a newly-hired employee to serve a period of probation before the appointment of the employee is confirmed”. It continues that “the purpose of probation is to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment”.
In Crawford v Grace Hotel (2000) 21 ILJ 2315 (CCMA) the purpose of probation was described as follows – “Employment decisions may, and, with hindsight, often do turn out to have been imprudently made, which is not surprising considering the limited information and knowledge of the (employee) available to the employer at the time of recruitment. It is to afford employers a reasonable opportunity to correct such errors in recruitment and selection without having to incur costs to the business, financial and otherwise”.
Probation periods can vary in length, Schedule 8 of the Act deals with this in providing that “the period of probation should be determined in advance and be of reasonable duration. The length of the probationary period should be determined with reference to the nature of the job and the time it takes to determine the employee’s suitability for continued employment”. It follows that relatively uncomplex jobs will have a relatively short probation period, and more complex positions a longer probationary period. For example, when hiring a finance manager after completion of a year-end, it would be deemed reasonable for there to be a 12-month probation period, as it would take a further 12 months to assess the competence of the newly appointed financial manager in completing the next financial year end, which would be approximately 12 months after his or her appointment. The probation period for a switchboard operator, however, could be relatively short, as competence in the management of a switchboard could reasonably be assessed in a matter of weeks.
In the CCMA arbitration of Yeni v SACP (Case number: KN2250-97), it was noted that “the circumstances of the job relate to the nature of the job and the time it takes to evaluate the employee’s suitability. A simple job with very little required skills will need a far shorter period than a high-powered job with special required skills to establish the employee’s suitability of the job. A probation period could therefore be days or months depending on the circumstances”.
Importantly a probationary employee’s performance should be assessed during the course of the probationary period, with feedback on performance and compatibility being given to the probationary employee, at regular intervals. Schedule 8, Section 8 of the Labour Relations Act, deals with this in Section 8(e) which states that “during the probationary period, the employee’s performance should be assessed. An employer should give an employee reasonable evaluation, instruction, training, guidance or counseling in order to allow the employee to render a satisfactory service. In practice, more especially regarding smaller employers, it is required that the employee is made aware of their shortcomings in performance, and given reasonable time to improve upon them.
Probationary employees should be informed of areas of performance which the employer is unhappy with, and given reasonable time to improve.
If, at the end of a probationary period, the employer is not entirely happy with the employee’s overall performance, the employer is quite entitled to extend the probation period, to afford the employee further time to close performance gaps. This may only be done, however, after the employer has invited the employee to make representations and has considered any representations made”.
The same applies to dismissal during, or at the end of, a probationary period.
Importantly, section 8(j) of Schedule 8 of the Labour Relations Act states that “any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
by Tony Healy | Nov 5, 2018 | Discipline & dismissal
Our case law authority has, for some time, recognized that the pre-dismissal procedures required to be applied in cases of poor work performance dismissals for ordinary employees, do not apply to quite the same degree when dealing with senior managerial or executive dismissals for poor work performance.
Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal), at section 9, provides “guidelines in cases of dismissal for poor work performance”. These guidelines apply to, for want of a better term, ordinary employees, and stipulate that when the fairness of a dismissal for poor work performance is being assessed, it should consider “(a) whether or not the employee failed to meet a performance standard, and (b) if the employee did not meet a required performance standard, whether or not (i) the employee was aware, or could reasonably be expected to have been aware, of the required performance standard; (ii) the employee was given a fair opportunity to meet the required performance standard; and (iii) dismissal was an appropriate sanction for not meeting the required performance standard”.
A number of judgments are worth visiting in regard the manner in which executive level dismissal cases should be approached. The first is that of Somyo P v Ross Polutry Breeders (Pty) Ltd (GA9/97). This case related to the dismissal of the manager of a chicken farm for various allegations relating to poor work performance. This landmark judgment noted that “an employer who is concerned about the poor performance of an employee is normally required to appraise the employees work performance; to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee a reasonable opportunity to improve his performance… those requirements may not apply in two cases… the first is the manager or senior employee whose knowledge and experience qualify him to judge for himself whether he is meeting the standard set by the employer… and second, where.. the degree of professional skill must be required is so high, and the potential consequences of the smallest departure from that higher standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal.
The judgment more especially noted that the manager “was not an ordinary employee”. In this regard, the Labour Court was drawing a distinction between the manner in which senior managerial dismissals for poor work performance, deviates from the procedure required to be followed in cases of ordinary employees.
The landmark judgment most frequently referred to in cases of senior managerial dismissals for poor work performance, is the Labour Appeal Court case of HPN Brereton v Bateman Industrial Corporation Ltd & Others (Case number: GA80/99). Amongst other things, this judgment made reference to an English case, namely that of E C Cook v Thomas Linnell & Sons (1997) IRLP132 in which an employment appeal tribunal, in the head note of the judgment, stated that “the appellant had been fairly dismissed from his post as manager of the respondent’s food depot on grounds of the employer’s genuine loss of confidence in his ability. Although employees must act reasonably when they are moving from a particular post an employee whom they consider to be unsatisfactory, it is important that the operation of unfair dismissal legislation should not impede employer’s unreasonably in the efficient management of their business. The quality of management is an imponderable which it may be difficult to assess precisely. Therefore, when responsible employers have genuinely come to the conclusion over a reasonable period of time that a manager is incompetent, that is some evidence that he is incompetent, although it is necessary to look to see whether there is any other supporting evidence. The heading continues that when poor work performance is evident in an area “it is reasonable for employers who have no confidence in their manager to come to the conclusion that he shares some responsibility for it”.
The Brereton LAC judgment drew attention to the fact that “the first question to be considered is whether it is incumbent upon his employer to warn him that his performance is falling short of the standard required of him (the employee) and so afford an opportunity to rectify the position before steps are taken to terminate (the employees) employment. It has been recognized by the courts that in respect of this requirement, the position of a senior manager differs from that of an ordinary employee. Because of his situation and the overall view of the business which he enjoys as a result thereof, he will ordinarily be aware of the shortcomings in his performance and the adverse consequences to the business resulting there from. He will likewise himself appreciate the necessity to remedy the situation without it being drawn to his attention by another. It will be pointless to insist upon his being warned of a situation of which he must already be fully aware.
The judgment continues that “the second situation recognized by the courts in which the necessity for a warning may be dispensed with is where the poor performance of the officer concerned is so gross, and its consequence is so serious, that it will be unfair to require the employer to suffer any further delay in terminating his employment”.
by Tony Healy | Nov 4, 2018 | Discipline & dismissal
One of the challenges faced by employers is the use of personal cellphones by employees during working hours. This is particularly problematic when the use of personal cellphones at work poses a risk to health and safety. This was the set of circumstances that was being dealt with in the CCMA arbitration hearing in NUMSA obo Nyamande, C. J. v National Glass (GAEK1922-17).
The facts in this case were quite simple. The employer was a supplier of glass and aluminum products. The employer was a warehouse assistant, whose duties included the driving of the forklift truck. The employee was charged with “health and safety, on 23 January 2017, you were caught by your warehouse manager, Wesley Palm, talking on your cellphone whilst operating the forklift as seen in (the below) footage”.
According to the employer, they had a prior progressive discipline to remedy the conduct of the employee regarding health and safety requirements. This had included counseling for failing to wear safety glasses, sitting on the front forks of a forklift being driven by a colleague, and having had an accident in a company vehicle, resulting in damage to the vehicle of approximately R42 000.00.
The employer submitted that the employee was well aware of the health and safety rules, as these had been encapsulated in the employee’s contract of employment. The hearing was conducted by way of a teleconference as the employer’s head office was located out of town. The employee was represented by a shop steward at the hearing, who did not object to the hearing being conducted by way of a teleconference.
The employee pleaded guilty to the allegation in question at the disciplinary hearing, presented mitigating factors as to why he had spoken on his cellphone whilst driving the forklift truck. In this regard, he submitted that he had received a number of missed calls from his mother and he was anxious to establish the reason for these calls.
In analyzing the evidence, the Commissioner held that there was no evidence to indicate that the employee was adversely affected by the fact that the hearing was conducted via telephone conference. No objection had been lodged at the time regarding the telephone conferencing of the hearing. In this regard, the Commissioner, in the arbitration award, noted that, “the outcome of the hearing would have been the same, as the applicant had admitted to using his cellphone whilst operating a forklift”. The dismissal of the employee was therefore held to have been procedurally fair.
In regards the substantive fairness of the dismissal, it was not in dispute that the applicant spoke on his cellphone whilst operating the forklift. Evidence had been led by the employer to show that the employee was aware of the rule related to speaking on cellphones whilst driving a forklift; this had been addressed on both his employment contract and the employer’s disciplinary code, both of which had been signed by the employee.
It was noted that the employee did not “endanger anyone or himself when he spoke on his cellphone whilst operating the forklift”. The Commissioner noted that the employee had “denied that he was aware of the rule related to safety issue”. The arbitration award held that the employee had been found guilty of the charge, and then turned itself to an assessment of whether dismissal was an appropriate sanction for contravention of the rule in question.
The arbitration award further held that the employee “deliberately broke a rule that he was aware of and by virtue of the fact that the employee had a prevailing final written warning for related safety matters at the time he was found guilty of driving the forklift truck whilst talking on his cellphone “no other disciplinary action could be taken other than to dismiss” the employee. It was further noted that the applicant’s disciplinary record all related to the transgression of safety rules, and the employee “was a serial transgressor of safety rules”. To make matters worse “the (employee) was not remorseful”.
Employee usage of personal cell phones during working hours hampers productivity and, as evident in this case, can compromise safety.
by Tony Healy | Nov 3, 2018 | Discipline & dismissal
There are numerous CCMA and Bargaining Council arbitration awards and Labour Court judgments which have held that, in certain circumstances, cases of minor theft do not necessarily warrant dismissal. That’s not always true however. There are indeed circumstances of minor theft, involving a relatively insignificant financial loss to the employer, which do none the less warrant dismissal.
Our Courts have, over the years, been required to address the question of whether, or not, the value of that stolen by an employee has any baring on the automatic assumption that ‘theft is theft’ and will always justify dismissal.
One of the most often referred to cases on this issue goes back to a Labour Appeal Court in Anglo American Farms v Komjwayo (1992) 13 ILJ 573, in which a waiter was dismissed for the consumption of a can of Fanta cool drink.
The employee’s defence was that the cool drink had been paid for by the guest, but left it behind. The employer was appealing the Industrial Court’s finding that the decision to dismissal the employee “was clearly unreasonable and unfair inasmuch as it was too harsh, bearing in mind the nature and small value of the property stolen” amongst other things”.
The Labour Appeal Court came to a different conclusion, holding that the dismissal of the employee was indeed fair. More especially, the Labour Appeal Court held that “in regards the intrinsic substantive fairness or unfairness of the dismissal, much was made on respondent’s behalf, both in the industrial court and in this court, of the small value of the Fanta soft drink, viz 65 cents. There is no doubt that the value of an article which is stolen may, and often does, play a significant role when the question of an appropriate penalty is considered. However, this role is not always, or necessarily, such that low value is always a conclusive indication that only a lenient penalty is called for” adding that “it seems to me that the relationship between an employer and such an employee is of such a nature that, for it to be healthy, the employer must, of necessity, be confident that he can trust the employee not to steal his stock in trade. If that confidence is destroyed or substantially diminished by the realisation that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer. Thenceforth he will, as it were, have to be continually looking over his shoulder to see whether his employee is being honest”.
This case was heard prior to the post-1994 amendments to our labour law regime. Whilst this authority has less standing vis a vis subsequent case law, it remains of relevance. An unsuccessful attempt to steal has been shown to reveal a ‘thieving propensity’.
In the more recent CCMA arbitration hearing in FAWU obo Ngxokolo, Zoliwe Mapu v Summerstrand Hotel (Case number ECPE6770-17), the employee was found guilty of “taking a banana and a box (of) juice from the storeroom”.
Staff were entitled to one meal each per shift, and juice which was in a container in the kitchen. In addition, they were entitled to unlimited access to tea and coffee. On the day in question, the employee had her meal, and thereafter, was observed on a video camera, “getting into the storeroom where she took a banana and a box of juice and ate them”.
The employer submitted that it spent approximately half a million Rand per annum on food for staff, and five other employees had been dismissed from the kitchen for similar offences in the kitchen.
The employee admitted having taken the banana and juice after having been shown the video footage. She had recently been promoted, and had taken the food in front of a more junior employee. To make matters worse, she showed no remorse. In her defence, the employee submitted that she was dizzy before she took the banana and juice, as she had a chronic condition, continuing that she “took” the items, but did not “steal” them.
The Commissioner held that the employee was in constant denial of the charge of unauthorised possession of company property “even though she admitted to taking the banana and juice without authorisation and eating them. Denials cannot come in a worse form than that”. The arbitration award continued that “her denials and hiding behind improbabilities were a demonstration of a lack of remorse on the part of the (employee)”.
The dismissal of the employee was held to have been fair.
by Tony Healy | Nov 2, 2018 | Discipline & dismissal
Unfortunately, but not unsurprisingly, employee postings on social media platforms which put the good name of their employer into disrepute, are becoming increasingly common.
More often than not, the social media postings are of such a nature that the dismissal of the employee is warranted.
In the Labour Court judgment in Juda Phonynogo Dagane v SSBC and Others (Case number: JR2219/14) delivered on 16 March 2018, the employee sought to review a CCMA arbitration hearing finding that his dismissal for having made racist remarks about his employer, SAPS, on Facebook, was unfair.
As was stated in the judgment “the facts are fairly straightforward”. The allegations levelled against the employee at the disciplinary hearing comprised of him “prejudicing the discipline and efficiency of the SAPS and contravened the SAPS regulations, code of conduct and code of ethics by unfairly and openly discriminating against others (whites) on the basis; through blatantly discriminatory racial remarks; by threatening the future safety and security of white persons; and by making uncalled for remarks on Facebook which amounted to hate speech”.
The Facebook postings were described as “vitriolic racist comments” in the judgment and contained profanities threatening genocide and hatred of a racial grouping”.
The employee submitted that the Commissioner in the arbitration hearing had not applied her mind to the evidence before her, and had come to a conclusion that another reasonable arbitrator could not have arrived at. In addressing this, the court noted that it had perused a transcript of the Commissioners findings and when considering whether the dismissal was for a fair reason, the court concluded that the Commissioner had applied her mind reasonably in concluding that the remarks made by the employee on Facebook were contrary to the Constitution of the Republic of South Africa, the SAPS code of ethics and the SAPS code of conduct “all of which prohibit discrimination and exhort the citizens of our democracy to treat everyone with equal respect and to create a safe and secure environment for all South Africans”.
The employer also argued that the employer had no policy regarding social media within the workplace.
The court noted that the arbitrator had “noted that it was common sense that people should be careful about what is said on social media as such utterings would be in the public domain. The court held that “this too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee also submitted that someone had created a Facebook account using his details, or that “someone had hacked into his account and made these postings”.
This submission was held to be improbable as access to the employee’s Facebook account “would need his password and that he had not given anyone his password”.
Notably, the court also held that if indeed someone had hacked into his account “the applicant would have distanced himself from making the remarks, which he did not do”.
The court further held that the arbitrator had reasonably concluded, in relation to the totality of evidence that was before her, that “on a balance of probabilities the employee was the author of the offensive and racists remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech”.
Turning to the question of the severity of the sanction of dismissal, the court held that the dismissal of the employee was an appropriate sanction, as the arbitrator had “considered that the applicant was employed as a police officer with a mandate to protect its citizens irrespective of the race, colour and creed of such citizens. She considered that to threaten the safety of another sector of the community was wrong and that the conduct of the applicant did have the effect of bringing the SAPS into disrepute”.
More recently, in Hotz v UCT (SCA:2016) racial slurs were denounced in the judgment which held that “The issue of the content of the slogans, whether painted on the War Memorial and the bus stop or worn on a T-shirt, as well as statements, such as those made by the third appellant in the confrontation with a student, is a delicate one. Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard. It was rightly said in Mamabolo that ‘freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by sections 15 – 19 of the Bill of Rights.’ But in guaranteeing freedom of speech the Constitution also places limits upon its exercise. Where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constituting incitement to cause harm, it oversteps those limits and loses its constitutional protection.”
