by Tony Healy | Feb 26, 2019 | Discipline & dismissal
So, your car breaks down and you have no replacement; is your employer obligated to accommodate your absenteeism and late-coming that follows? No, they are not.
This was he scenario in the Labour Court review application in National Nuclear Regulator v the CCMA & others (Case number JR3104/12). The employee, a Senior Assessor Nuclear Safety, was dismissed for not adhering to the employer’s normal working hours, unauthorised absence from work, and insubordination.
This genesis of this case can be traced back to the time at which the employee’s motor vehicle allegedly broke down, and could not be repaired. Faced with this dilemma, the employee did not purchase another vehicle. He in fact the relied on a borrowed vehicle from a neighbour, but could only get to work on Mondays, Wednesdays and Thursdays, from approximately 3pm. This was of course untenable for the employer.
The employer’s CEO then sent out an e-mail to all staff clarifying working hours and imploring staff to observe the company’s punctuality requirements. All employees complied with the instruction to be punctual, except the employee in this case. Management engaged the employee in an attempt to address his ongoing failure to comply with the employer’s requirement for punctuality.
The employee was eventually issued a written warning, valid for six months. The employer continued to engage the employee on the issue, including a proposal that he use public transport to get to and from work. The employee replied “Your suggestion that I catch a taxi, and by so doing might possibly put my life in danger constitutes an unfair labour practice”.
A final written warning was the issued to the employee, who was also advised that should he commit a similar offence within the twelve-month validity period of the final written warning, a much harsher sanction would be imposed.
Thereafter, the employee was frequently absent from work and continued to report late for work, resulting in the employer summonsing the employee to a disciplinary hearing to answer to four allegations, (1) Failure or refusal to comply with a lawful instruction from the superior, (2) Absenteeism for three or more consecutive working days without permission and (4) Repetition of offence for which a written warning was issued. The employee was found guilty on all four counts, and dismissed.
The employee subsequently referred an unfair dismissal claim to the CCMA. At arbitration, the Commissioner held that the dismissal of the employee was both procedurally and substantively unfair, in that, alarmingly, “the applicant had an explanation for his limited attendance at the office” and that this explanation is “reasonable”.
To rub salt into the wound, the Commissioner made a costs order against the employer “without giving any reasons for such an order”.
The employer took the adverse arbitration award on review to the Labour Court, which held, amongst other things, that had the Commissioner “applied his mind to all the .. considerations which he has ignored, he may have come to a different conclusion. Accordingly, his award is vitiated with irregularities and stands to be reviewed and set aside”.
The judgment continued that the Commissioner had “totally misconstrued the case of the (employer) and in the process committed a reviewable irregularity” adding that he also “failed to take into account material evidence before him and, furthermore, he gave undue emphasis to irrelevant evidence”.
The Labour court ordered that the arbitration award in favour of the employee be set aside, and substituted with “the dismissal of the (employee) is procedurally and substantively fair”.
There are a number of lessons to be learnt from this case. To begin with, working hours should be unambiguous and clearly communicated to staff. Late-coming should be timeously and consistently sanctioned to build a history of progressive discipline. Employees cannot be found guilty of misconduct if they have a valid explanation for absenteeism or late-coming. But if they don’t, it is misconduct.
Prudent employers will also make specific provision for absence without leave and late-coming in their disciplinary codes.
by Tony Healy | Feb 14, 2019 | Discipline & dismissal
It should go without saying that racist remarks and language is abhorrent, and is treated as such in labour disputes, if proved.
This was the subject matter in the Labour Court case of Juda Phonyogo Dagane v the Safety and Security Sectoral Bargaining Council & others (JR2219/14). More especially, the racist remarks were made on Facebook, showing the continued growing phenomenon of dismissal for inappropriate employee comments in social media.
In this case, the employee had been dismissed by the employer after having been found guilty of making “vitriolic racist comments on the Facebook page of the leader of the Economic Freedom Fighters (EFF), Mr Julius Sello Malema”. The employee’s alleged comments included “F… this white racist shi..! We must introduce Black apartheid. Whites have no ROOM in our heart and mind. Viva MALEMA” and “When the Black Messiah (NM) dies, we’ll teach whites some lesson. We’ll commit a genocide on them. I hate whites.”
The employee had been charged with four counts of misconduct, namely “prejudicing the discipline and efficiency of the SAPS and contravening the SAPS Regulations, Code of Conduct and Code of ethics by unfairly and openly discriminating against others (whites) on the basis of race; 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 dismissal was held to have been fair at the arbitration hearing. At the Labour Court, the substantive fairness of the dismissal was challenged on review. The procedural fairness of the dismissal was also challenged on review, via inappropriate means in so far as is relevant, on grounds that the “charge sheet” [sic] was not adequate, as it did not set out the date, time and place where the misconduct occurred.”
In assessing the merits of the review application, with specific reference as to whether the arbitrator had applied her mind in finding that the dismissal of the employee had been substantively fair, the Labour Court judgment noted that “The (CCMA) Commissioner (had) also considered the applicant’s argument that there was no policy regarding social media within the workplace. She 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. This too is a reasonable evaluation by the Commissioner and one that any reasonable decision maker could have arrived at”.
The employee argued that his Facebook account had either been hacked, or someone had, unbeknown to him, opened the Facebook account without his knowledge or permission.
In this regard, the Labour court held that “The Commissioner found on a balance of probabilities that the applicant was the author of the offensive and racist 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. This is a reasonable conclusion in relation to the totality of evidence that was before her”.
The judgment continued that the employee “was dismissed for very serious misconduct. He, a SAPS officer, had unfairly and openly discriminated against others (whites) on the basis of race through blatant blatantly discriminatory racial remarks; by blatantly threatening the future safety and security of white people; and by making remarks on Facebook which amounted to hate speech. It hardly needs to be reiterated that the use of racist language is despicable”.
The judgment importantly added that “Whilst there has been a plethora of cases on this most unfortunate scourge of our society, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others perhaps remains the locus classicus “The attitude of those who refer to, or call, Africans “Kaffirs” is an attitude that should have no place in any workplace in this country and should be rejected with absolute contempt by all those in our country – black and white – who are committed to the values of human dignity, equality and freedom that now form the foundation of our society. In this regard he courts must play their proper role and play it with conviction that must flow from the correctness of the values of human dignity, equality and freedom that they must promote and protect. The courts must deal with such matters in a manner that will “give expression to the legitimate feelings of outrage” and revulsion that reasonable members of our society -black and white – should have when acts of racism are perpetrated. It was never contended that the use of the racist epithets in question should not be visited by the sanction of dismissal. Racism is a plague and a cancer in our society which must be rooted out. The use by workers of racial insults in the workplace is anathema to sound industrial relations and a severe and degrading attack on the dignity of the employee in question. The Judge President has dealt comprehensively with this matter in his judgment and I wholeheartedly endorse everything that he says in this regard.”
by Tony Healy | Jan 31, 2019 | Discipline & dismissal
Incompatibility between an employee and his or her colleagues can, and often does, result in fair dismissal, on grounds of either misconduct or incapacity. It is a set of circumstances in which an employee is responsible for an irretrievable breakdown in harmony which, as described in Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) “is of such a gross nature that it causes consternation and disruption in the workplace”.
In the Labour Court case of Sally-Anne Bentley v Survival Tyre Safety (Pty) Ltd (Case number JS799/16), it was noted that “A dismissal for incompatibility is more properly classified as a form of dismissal for incapacity if the employees concerned are not to blame for the conduct that renders them incompatible. On the other hand, if the employee concerned is to blame for his or her behaviour, termination of employment can be viewed as dismissal for misconduct”.
In this case, the employee had been accused of incompatibility on grounds of misconduct. None of the employer witnesses testified that they were unable to work with the employee; on the contrary, they testified that they were in fact able to do so. No employer witnesses were led who had allegedly complained about the employee’s behaviour. One of the employer witnesses testified that when asked by management to formulate written complaint about the employee, she was unwilling to do so. In fact, the employer witness continued that “the (employee) was the only female in a predominately male environment and that she had to fight harder to get what she wanted. The (employee’s) persistence made her one of the most successful sales representatives” at the company.
The judgment continued that “the employee’s conduct must be the cause of the disharmony or tension”. According to the employer, the employee was demanding and difficult to work with, and this coincided with a dispute about her commission structure, working hours and leave entitlement.
The employer also argued that the employee’s “alleged incompatibility stemmed from her inability to do her work.
The Court concluded that the employee’s dismissal on grounds of incompatibility was unfair, and that the evidence clearly points towards a unilateral change in the employee’s working conditions.
The Labour Court judgment in Watson v South African Rugby Union & others, was noted to have held that “the starting point is to treat any allegation of incompatibility as a case of incapacity. It is only once the measures put in place to address and reverse the incompatibility complained of have failed that it can be treated as misconduct. Thus, once those measures, accompanied by set norms and standards have failed to yield results and the employee continues with his or her errant ways, nothing prevents an employer from dealing with that employee’ stuffy subsequent behaviour as misconduct”.
In Edcon Limited v Kesha Mohammed-Padayachee & others (Labour Court, case number J331/16) the employer sought to review the dismissal of the employee on grounds of incapacity, which the CCMA had held had been substantively unfair, with the reinstatement of the employee with back-pay.
The employer contended that there had been several complaints from various staff members about the employee, around her work ethic her ability to work collaboratively within her team. An incapacity hearing was convened at which the employee was held to have been incompatible, and dismissed with pay in lieu of notice.
In the review, the employer, amongst other things, argued that the dismissal was not procedurally unfair, that the CCMA Commissioner had “misconceived the enquiry”, ignored the employer’s poor work performance policy, and “ignored evidence of four witnesses and concluded that two other witnesses were relevant to prove incompatibility”. The employer placed significant emphasis on its assertion that the Commissioner had also not given enough consideration to the employee’s poor work performance and insubordination.
The Court held that the employee was not in fact dismissed for poor work performance and insubordination, noting that “the reason why (the employee) was dismissed is that she was found to be incompatible”.
The judgment continued that “Incompatibility arises in a situation where there has been a breakdown in the harmony. The golden rule is that prior to reaching a decision to dismiss, an employer must make some sensible, practical and genuine efforts to affect an improvement in the inter-personal relations when dealing with a manager whose work is otherwise perfectly satisfactory. The offending employee has to be advised what conduct allegedly causes disharmony, who is upset by the conduct, and what remedial action is suggested to remove the cause of the disharmony”.
The employee must then be afforded reasonable time to make amends. The employee must be warned and counselled if there is no improvement, before a hearing is held.
In this case, the review application was dismissed with costs.
by Tony Healy | Jan 29, 2019 | Discipline & dismissal
Employers are quite rightly entitled to view employee dishonesty in a very serious light. Regretfully, theft-related and dishonesty cases are quite common in the workplace. In our experience, for example, half of the disciplinary cases in the hospitality industry ate theft-related.
In the Labour Appeal Court case in Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC), the Court warned that ‘dishonesty’ is not a loose term that could just be thrown at employees in any circumstances. The Labour Appeal Court held that dishonesty entails ‘a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.
In another case, the Labour Court dealt with employee dishonesty in Massbuild (Pty) Ltd t/a Builder’ Warehouse v the CCMA & 2 others [JR1685.12].
The facts were quite straight forward. The employee was routinely subjected to a search in a search cubicle, as is common practice in the retail industry. During the course of conducting the search, in the presence of two security guards, the employee was found to have been in possession of an emergency cell phone charger in his bag, valued at approximately R100.00.
This charger was on sale at the store in question, and the employee had no proof of purchase. The employee subsequently failed a polygraph test.
The employee was the charged with having been in unauthorized possession of the cell phone charger, and he was dismissed after having been found guilty.
The employee referred an unfair dismissal claim to the CCMA. At the arbitration hearing. The CCMA commissioner held that the dismissal was procedurally and substantively unfair, and the employee was awarded six months compensation. The employer took the matter on review to the Labour Court.
The Labour Court judge concluded that “the commissioner failed to apply his mind” to various “materially relevant facts”.
This included the fact that the employee had signed a statement confirming that the charger had been found inside his bag during the security search, even though during the arbitration hearing, he had denied that he had been caught in possession of the charger. The employee had also admitted this during the original disciplinary hearing.
The Judge held that the commissioner’s finding that the charger had not been found to have been in the employee’s possession was unreasonable, and that this commissioner’s failure to consider material facts amounted to “having caused an unreasonable result in relation to guilt.
The Court set aside the arbitration award declaring the dismissal unfair, and awarding the employee six months compensation, and replaced it with an order that the dismissal of the employee was fair.
On the question of such unauthorised possession being deserving of dismissal, the Court held that “It is difficult to imagine how everyone could be given a chance to be found at least once in unauthorized possession of company property before resorting to dismissal. Dismissal for a first instance of such misconduct was fair ..”.
In the matter between ABSA Bank Ltd v Naidu DA14/12 24/10/2014 (LAC), it was held that “dishonesty has a corroding effect to the trust which the employer is entitled is entitled to expect from its employees in its various operations”.
The Labour Appeal Court had the following to say about the effect of dishonesty by an employee on the employment relationship in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) – “This trust which the employer places in the employee is basic to and forms the substratum of the relationship between them. A breach of this duty goes to the root of the contract of employment and of the relationship between employer and employee”.
It follows that dismissal is generally considered justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer.
In Theewaterskloof Municipality v SALGBC (WC) and others LC C966/2008, 14 May 2010, the Labour Court stated that the question of trustworthiness was seen to go beyond offences which are centrally dependent upon proof of outright dishonesty. The Court continued that the general principle that conduct on the part of an employee which is incompatible with the trust and confidence necessary for the continuation of an employee relationship, will entitle the employer to bring it to an end, is a long established one.
In Toyota SA Motors (Pty) Ltd v Radebe and others [2000] 3 BLLR 243 (LAC), it was held that “Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that 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. To my mind, one such clear act of misconduct is dishonesty”.
by Tony Healy | Jan 9, 2019 | Discipline & dismissal
A common refrain from employers is that dismissal is difficult, as our legislation, and CCMA (and Bargaining Council) Commissioners, count against employers in unfair dismissal disputes. The fact is that dismissal is entirely appropriate, and therefore fair, as long as it is affected for a fair reason, and following a fair procedure in which there is evidence that the employee is probably guilty. This of course presupposes that there has been a repetition of offences, or one single act of misconduct which is so gross in nature that, on its own, it justifies dismissal.
We see in our practice, on a daily basis, that adherence to these principles invariably results in dismissals being upheld at the CCMA and Bargaining Councils.
Part of the problem is that employers often don’t know what they don’t know.
Discipline needs to be applied consistently, meaning that (1) an employer can’t suddenly discipline or dismiss an employee for misconduct they have overlooked in the past, (2) all employees, in respect of whom an employer has sufficient proof of misconduct, should be disciplined, and (3) all things being equal, employees found guilty of the same offence should receive the same sanction.
Two types of fairness must be evident in all disciplinary cases, including dismissals, namely substantive and procedural fairness; these are the yardsticks used to assess whether, or not, a dismissal, or lesser disciplinary action for that matter, was fair.
Substantive fairness has four elements. Firstly, there must be a fair reason for the disciplinary action, or dismissal, and secondly, discipline must be applied consistently. The third important factor is that if the employer has sufficient proof of guilt, prior to selecting a sanction, the employer is required to give careful consideration to mitigating and aggravating circumstances.
Mitigating circumstances are factors presented by the employee, in an attempt to persuade the disciplinary hearing chairperson to show leniency in their selection of a sanction. Mitigating factors would include length of service, whether the employee has a clean disciplinary record, age, and any other personal circumstances which may have a bearing on the sanction choice (such as the employee being a sole breadwinner).
Aggravating circumstances are factors presented by the employer complainant, and are the employers sentiments on which sanction should be selected, and why. For example, an employer may submit in aggravation that (1) the employee has short service, (2) the employee has a poor disciplinary record, (3) the employee has shown no remorse, and (4) importantly in potential dismissal cases, the trust relationship has not merely been damaged by the employee having been found guilty of the misconduct, but has in fact been broken beyond repair, thereby rendering the ongoing employment relationship intolerable.
In the event that an employer seeks dismissal on grounds that the trust relationship has been damaged beyond repair, this employer view must be justified, as the CCMA will not merely agree that a trust relationship has bene broken beyond repair, simply on the ‘say-so’ of the employer. An investigation will be conducted to establish whether, or not, the presumption of an irreparable breakdown in trust is reasonable in the circumstances.
Item 7 in Section 8 of the Labour Relations Act (Code of Good Practice: Dismissal) sets out guidelines for employers as far as substantive fairness is concerned, and in so doing, focuses on the fact that the employer is required to also show (1) that the employee contravened a rule, (2) that the rule or standard was valid and reasonable, (4) that the employee knew, or should have known, the rule or standard, and (5) that dismissal was a fair and appropriate sanction.
Put differently, when it comes to the selection of an appropriate sanction, it is frequently said that “if the employer’s choice of sanction makes the court whistle, it is too harsh”.
In addition to being substantively fair, disciplinary action must also be procedurally fair. Quite simply, employers are obliged to adhere to their internal disciplinary procedures, which set out the manner in which disciplinary processes will be implemented in the company. This would include, the notice period to be applied prior to disciplinary hearings being convened, and the employee’s right to representation (typically internal representation only). Additionally, the misconduct allegations must be clear communicated to the employee, and an interpreter should be sourced should the employee elect to defend themselves in their mother tongue.
Remember too that the amount of proof required to prove an employee guilty of misconduct is proof of probable guilt (proof on a balance of probabilities) often explained on the basis that the probabilities that the employee is guilty must be greater than (not equal to) the probabilities that the employee is not guilty.
Finally, disciplinary hearings were never intended to be conducted in a complicated, criminal procedure-like manner. It is understood that laypersons oversee disciplinary processes. Fairness and reasonableness are key.
by Tony Healy | Jan 7, 2019 | Discipline & dismissal
One of the biggest employment sectors in the country is that of domestic workers. There is specific minimum wage legislation relating to domestic workers, and as is to be expected, domestic workers have the same rights as their fellow workers in more formal sectors.
Domestic work differs from more formal employments sectors by virtue of the fact that the employment relationship takes place in private residences. This quite clearly already places great importance on issues of trust and honesty. Many domestic employment relationships last for many years, but not all do so.
Like any other employment relationship, the CCMA takes a dim view of unfair dismissal in the domestic sector. This was the case in the arbitration hearing between Sindisiwe Victoria Nala v Fiona Huma-Siripa (Case Number: GAJB5275-17).
In this case, the employee was a so-called live-in domestic worker, who had been employed by the employer since 7 January 2016, prior to the termination of the employment relationship on 8 March 2017.
According to the employer, the employee would, from time to time, “get a few days off, and then travel to the north coast of Kwa-Zulu Natal in Empangeni”. On one such occasion, the employee took one of her monthly trips to visit her family in Empangeni, however she failed to return to work on the agreed date.
The employer then phoned the employee, but her phone was off, after which she sent her a short message (sms), and followed this up with a further sms the following day. The security guards at the access gate of the complex in which the employer reside, called to confirm that the employee was at the gate at 4pm, the day after she had agreed to return to work. The employer then took the employee’s belongings to the gate, confirming “Siyabonga, thank you”, we no longer wanted her.
According to the domestic worker, she did indeed return from visiting her family in Empangeni, in Kwa Zulu Natal, on the day after she had agreed to do so, but she had lost her mobile phone, and could therefore not communicate with the employer.
She continued that when she reported to the entrance gate of her employer, the husband of the household arrived at the gate and instructed her to get into his car, after which he drove her to the local Shoprite Centre. At the shopping Centre, he informed her that her belongings were in the boot, and that “it was over with them” and they no longer needed her services.
The employee continued that “she was dismissed in a callous manner”.
The Commissioner agreed. The arbitration award began by noting that the employee “was not granted an opportunity to state her case”. It continued that what’s more “there was no consultative meeting at all”. To make matters worse, the employee “was not charged with misconduct or found guilty of any misconduct”. The dismissal was held to have been callous and demeaning to the employee’s personhood. Furthermore, the dismissal was without a valid and legitimate reason.
The procedurally and substantively unfair dismissal warranted six months compensation to the employee in the eyes of the Commissioner.
Sectoral determination 7: The Domestic Worker Sector, makes provision for minimum wages and conditions of service in this sector, including all forms of leave, and notice periods.
It is also important to remember that any domestic worker, or indeed any person for that matter, that works for in excess of twenty-four hour per month, must be registered with the Department of Labour for the unemployment insurance fund.
