by Tony Healy | Dec 12, 2018 | Discipline & dismissal
The explosion of social media platforms, and their usage, has unsurprisingly spawned a fast growing plethora of workplace social media ‘e-misconduct’ cases.
Put simply, this primarily involves cases in which employees insult and/or offend their employer and/or its management on social media platforms such as, for example Facebook, Twitter, LinkedIn and WhatsApp groups.
This clearly has reputational consequences for employers, which is linked to the universal right to dignity.
The employment law cases which have thus far dealt with the apparent, at face value, conflict between the right to freedom of expression, and the right to protection of one’s reputation and dignity, have trended in favour of curbing the right of freedom of expression when it undermines reputational rights.
Key to the right of employer’s to take disciplinary steps against employees in such cases is the fact that after hours employee conduct does indeed fall within the ambit of an employer’s disciplinary code if such after hours, off duty, misconduct, is work related.
In Radebe v JD Group (Pty) Ltd [GAJB12297-14], the employee was dismissed for having posted insulting statements on his Facebook page after having been confronted by management regarding his poor time keeping and tardiness.
The Commissioner noted that “The applicant had submitted no formal grievance, against anyone, for the company to deal with but chose to vent himself on the social media”, and that “the employee constituted the face and voice of the company and his conduct on social media showed no regard for possible risks he exposed the company to with his comments”.
The dismissal of the employee was upheld.
Similarly, in Motloung v The Market Theatre Foundation [GAJB4458-11], the employee had been dismissed for what the Commissioner described as “a hate speech statement on Facebook” which “impacted negatively on the employer”. As far as the employee’s purported right to freedom of speech was concerned, the Commissioner noted that “I do not accept the argument that the employee’s Constitutional right to free speech entitled him to act as he did”.
Numerous CCMA and Bargaining Council arbitration awards and Labour Court judgments concur that employees may not slander their employees on social media platforms, and that should they do so, they commit a dismissible act of misconduct.
In the Motor Industry Bargaining Council arbitration case of Arthur Leach v Suzuki Johannesburg South [MIBCO DRC 44570D], it was held that “the DRC accepts that the CCMA had held in recent cases that employees may be dismissed for having posted false derogatory remarks about their employers or even the employer’s clients on Facebook, Twitter and other social networks or blogs, as these posts may have had the effect of harming the ongoing employment relationship, or have brought the employer’s name into disrepute”.
Continuing, the arbitration award added that “In aforesaid regard, there had been recent cases where employees had been dismissed for social media misconduct. Cases such as Sedick & another / Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA); Fredericks / Jo Barkett Fashions (2012) 1 BALR 28 (CCMA) and Media Workers Association of SA obo Mvemve v Kathorus Community Radio (2010) 31 ILJ 2217 (CCMA) … are examples where the cause of dismissal/disciplinary sanction had been related to social media misconduct.”
Of importance in such cases is whether, or not, the employees had restricted their Facebook privacy settings, as this talks to the right of employers to access employee Facebook pages.
In a recent KZN CCMA Arbitration Award in BEMAWU obo Thulani Msimang (KNDB 14983-16), it was held that “In two cases heard at the CCMA where the employees had not restricted their Facebook privacy settings, namely, (Sedick and another v Krisray (Pty) Ltd (2011) 8 BALR 879 (CCMA) and Fredericks v Jo Barkett Fashions [2011] JOL 27923 (CCMA), the Commission took the view that the employer was entitled to intercept the posts in terms of the Regulation of interception of communications and provision of communication related information Act 70 of 2002 (RICA).”
In a recent UK social media related case, it was held that the employee “was aware of the (social media) policy and one assumes she read it, she must have been aware what was and what was not allowed …. It may be seen as harsh but the (employer’s) taking into account of the (employee’s) long service and clean record nevertheless dismissed for a clear breach of the policy and that would fall within the range of reasonable responses open to an employer”.
So what can we learn from this?
What is becoming abundantly clear is that employers would do well to establish social media policies designating it an offence to post content which brings the good name and reputation of the employer into disrepute, and to supplement this with reference to such misconduct in the employer’s disciplinary code. What’s more, this policy should be a key component of an employer’s induction process.
Employer social media policies should remind employees not to rely on Facebook’s privacy settings, as comments can be copied and forwarded on to others without permission.
Employees would do well to exert considerable care when tempted to slander their employer on social media.
by Tony Healy | Dec 12, 2018 | Discipline & dismissal
It is not unusual for employer’s to designate so-called ‘zero tolerance’ policies for certain acts of misconduct. For example, an employer will often adopt a ‘zero tolerance’ policy towards theft related cases and alcohol related offences.
The upshot of this is that any employee found guilty of an act of misconduct which falls within a zero tolerance policy framework, will invariably result in the dismissal of the employee, regardless of the fact that the employee may, for example, have an otherwise clean disciplinary record.
At face value, these zero tolerance tendencies are quite understandable in certain circumstances. The question is however, whether dispute resolution bodies, such as the CCMA, will recognize such zero tolerance regimes regarding certain offences.
Case law directs us on this vexed question, and the answer is not as straight forward as many employers would believe.
Our Courts have had much to say about “a slavish imposition of the dismissal penalty” in the event of a breach of a company zero tolerance policy [Labour Court: Pick ‘n Pay Retailers (Pty) Ltd v CCMA & others – C1083-14].
It was further held in this case that “It is also necessary to make some further remarks as regards dismissal for a first offence ie: a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach”.
In another retailer case before the Labour Appeal Court, that of [Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement – JA49-14], it was held that “the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a no go area for commissioners. A zero-tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin.”
That’s not to say that zero-tolerance policies cannot be upheld in certain circumstances. Safety is of critical importance in many workplaces, such as a mining environment. In the Labour Court judgment in Superstone Mining (Pty) Ltd v CCMA & 2 others [Case no. C959/11), it was held that “given the employer’s zero tolerance policy with regard to alcohol-related misconduct of which the employee was aware, dismissal was clearly a fair sanction”.
In Assmang Ltd v CCMA & 2 others [JR911/13], the Labour Court once more upheld the notion of zero-tolerance policies relating to alcohol and safety in finding that “Being a mine, however, the Applicant is bound by the provisions of the Mine Health and Safety Act, which prohibits an employee from entering the mine premises whilst under the influence of alcohol …. the Second Respondent ought to have taken into account, the importance of the safety rule concerned, the reasons for their existence, and the seriousness and potentially life threatening consequences of a breach of such rule”.
In the final analysis, employers should be cautious in implementing zero tolerance policies; dispute resolution bodies such as the CCMA, Bargaining Councils and the Labour Courts, may frown upon such a policy. To a large degree, this criticism relates to such zero tolerance policies ignoring progressive discipline options such as final written warnings. Foreign jurisprudence has dealt with this issue, on occasion, by noting that a zero-tolerance policy in dismissal cases may not necessarily be upheld if the employer’s disciplinary code provides for discretion in the imposing of a dismissal sanction when misconduct is committed in respect of which there is ‘zero tolerance’. For example, does the disciplinary code state that the misconduct will lead to dismissal, or ‘may’ lead to dismissal?
In the final analysis, reasonable and justifiable zero-tolerance policies will be upheld in regard certain acts of misconduct, and each case will be examined on it’s own merits
Another bugbear of our Courts is frequent inconsistency in the application of such policies.
Employers may indeed emphasize the gravity of certain acts of gross misconduct in disciplinary codes, but be open to the fact that there will be, in exceptional circumstances, circumstances in which dismissal will deemed to be too harsh a sanction.
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 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”.
