by Tony Healy | Oct 3, 2018 | Discipline & dismissal
Earlier this month, the Labour Court passed judgment in a review application regarding a constructive dismissal case, between Agricultural Research Council v Silas Ramashowana and Others (Case number: JR1432/15). Constructive dismissal cases are interesting for a number of reasons, and are specifically addressed in Section 186(1)(e) of the Labour Relations Act, which states that “dismissal means that an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee”.
In this particular Labour Court case, the employee had been employed as a Divisional Human Resource Manager. On commencing employment with the employer, he was issued a company laptop, and signed a Due Care Agreement, in which he undertook to exercise due care in safeguarding the laptop which had been placed in his possession. In addition thereto, this agreement also made provision for the employee being liable for the monetary value of the replacement of the laptop, in the event that it was lost due to his negligence.
On 21 December 2012, the laptop allocated to him was stolen from his motor vehicle. The insurer refused to pay a claim for the replacement of the laptop, as its investigations revealed no forced entry into the vehicle of the employee.
The employer, after having conducted its own investigation, held the employee liable for the loss of the laptop, as its investigation had led them to conclude that the employee had been negligent in regards the theft of the laptop from his motor vehicle. As a result, the employer deducted the replacement cost of the laptop in three equal payments in October, November, and December 2013.
The employee was aggrieved by these deductions, as he was of the view that he had not been afforded an opportunity to state his side of the story. The employee was of the view that he had simply been an unfortunate victim of crime, which was common in the area in which the laptop had been stolen from his motor vehicle. It was further the view of the employee that criminals had jammed his vehicle’s car lock system, and had thereby gained access to his vehicle to steal certain of his personal belongings, as well as the company laptop. The employee had reported this to the South African Police Services.
Subsequent thereto, the employee refused to attend an enquiry into the loss of the laptop, as he was of the view that the employer simply wanted to rubberstamp its deductions from his salary. The employee then resigned on 1 March 2015, stating that “I hereby resign as a Divisional Human Resource Manager… albeit under duress because of the amount of R11 567.00 which was unlawfully deducted from my salary”.
The CCMA held that the employee was constructively dismissed, and the employer made application to the Labour Court in terms of Section 145 of the Labour Relations Act, seeking an order reviewing and setting aside the arbitration award made in favour of the employee.
The employer’s review was premised on its claim that the Commissioner had committed a material error in law, was that “the Commissioner had committed a material error in law when he wrongly applied the principles relating to constructive dismissal”.
The Labour Court judgment highlighted the three requirements in order for constructive dismissal to be established. Authority was quoted confirming that “…the first is that the employee must have terminated the contract of employment. The second is that the reason for termination of the contract must be that continued employment has become intolerable for the employee. The third is that it must have been the employee’s employer who had made continued employment intolerable. All these three requirements must be present if it is to be said that a constructive dismissal has been established. If one of them is absent, constructive dismissal is not established”.
This principle was put differently in the Labour Appeal Court case of National Health Laboratory Service v Yon and Others (Case Number…), in which it was held that “… a constructive dismissal occurs when an employee resigns from employment under circumstances where he or she would not have resigned but for the unfair conduct on the part of the employer toward the employee, which rendered continued employment intolerable for the employee”.
The Labour Court judgment went on to quote the Constitutional Court finding in Strategic Liquor Services v Mvumbi and Others (Case number…) by noting that that in this case it was held that “the test for constructive dismissal does not require that the employee should have no choice but to resign, but only that the employer should have made continued employment intolerable. Ultimately, the test remains whether it was reasonable to resign in order to escape the intolerable working environment”. In the Labour Court judgment regarding the employee who resigned due to the employer having allegedly unlawfully deducted the replacement cost of the laptop from his salary, the court held otherwise.
The Labour Court in this case emphasized the fact that the employee had resigned some 15 months after the deductions he was complaining of were effected. The Labour Court continued “also, as a senior Human Resources Manager with access to legal advice, he knew what recourse was available in a case of unlawful deduction”. The Labour Court also reiterated that “the employer may recover loss incurred due to the fault or negligence of an employee in terms of Section 34(2) of the Basic Conditions of Employment Act”.
The Labour Court found it “very opportunistic” of the employee “to use the incident that took place 15 months prior to the date of his resignation to support a case of constructive dismissal”. Unsurprisingly, the Labour Court held that there was no constructive dismissal, and that the employee had failed to prove that the employer had made his continued employment intolerable. Furthermore “the Commissioner evidently misconstrued the nature of the enquiry”.
by Tony Healy | Oct 1, 2018 | Discipline & dismissal
Consistency relates to the requirement that like offences, or acts of misconduct, should be treated alike, and different cases treated differently. This principle is also sometimes referred to as the parity principle. Whilst it is important to be consistent, this should not be confused with being rigid.
Consistency is typically assessed in three ways. Firstly, an employer may not suddenly discipline an employee for an act which was overlooked in the past. There is however nothing wrong with an employer becoming stricter, with regard to certain issues, as long as employees are informed of the Company’s intentions in this regard.
Secondly, all employees guilty of a breach in Company rules should be charged; this means that discipline should not be instituted selectively against employees. Finally, all employees charged should be disciplined in the same way; put differently, generally speaking, if two employees are guilty of the same act of misconduct, they should, in theory, receive the same sanction.
In the Labour Appeal Court case of Absa Bank v Naidu and Others, it was held that “It is trite that the concept of parity, in the juristic sense, denotes a sense of fairness and equality before the law, which are fundamental pillars of the administration of justice. In the Australian decision, Green v The Queen, it was said that the parity principle is an aspect of the systemic objectives of consistency and equality before the law the treatment of like cases alike, and different cases differently”.
The concept of consistency (the parity principle) was also addressed in National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994), where the court stated that “Equity requires that the courts should have regard to the so-called parity principle. This has been described as the basic tenet of fairness which requires that like cases should be treated alike …… it has been held by the English Court of Appeal that the word equity as used in the United Kingdom statute dealing with the fairness of dismissals, comprehends the concept that the employees who behave in much the same way should have meted out to them much the same punishment”.
Learned author Professor Grogan has also noted that “The parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty”.
A word of caution in the application of consistency in disciplinary proceedings was made in SACCAWU and Others v Irvin and Johnson (Pty) Ltd 2002 (3) SA 250 (LAC) “In my view too great an emphasis is quite frequently sought to be placed on the principle of disciplinary consistency, also called the parity principle. There is really no separate principle involved. consistency is simply an element of disciplinary fairness. Every employee must be measured by the same standards. Discipline must not be capricious. It is really the perception of bias inherent in selective discipline that makes it unfair. Where, however, one is faced with a large number of offending employees, the best one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness to the other employees. It would mean no more than his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy. Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not necessarily mean that the other miscreants should escape. Fairness is a value judgment”.
by Tony Healy | Sep 7, 2018 | Discipline & dismissal
In our law, dismissals must be fair. More precisely, they must be both procedurally and substantively fair. One of the key elements of substantive fairness is that the sanction imposed must be appropriate, ‘the punishment must fit the crime’, so to speak.
This concept of appropriate sanction, more often than not, relates to claims of substantive fairness on grounds that the sanction is inappropriate due to the choice of dismissal as a sanction being too harsh. Lesser sanctions, such as warnings and final warnings, can similarly be grounds for substantive unfairness claims.
The point of departure in sanction selection is that dismissal is a sanction of last resort, and dismissal for single acts of misconduct must be so gross as to warrant dismissal, giving due consideration to all prevailing mitigating factors.
From time to time, the Labour Court is charged with the adjudication of reviews in which, normally an employer, contends that dismissal was an appropriate sanction in certain circumstances, notwithstanding the fact that a prior arbitration award has held that dismissal was too harsh a sanction. In cases of this nature, a Commissioner at arbitration may reverse a dismissal and replace it with a lesser sanction, such as final written warning.
This is precisely what occurred in the Labour Court judgment of Top Security Pty Ltd v CCMA & others (case number JR519/09).
In this case, the employee, a security officer, was dismissed for misconduct related to hooting at a site in the early hours of the morning, thereby purportedly disturbing the peace, and insolence toward a member of the public when also threatening violence towards him.
The version of the applicant was that a resident was awoken at 3.30am by repeated and persistent hooting near his home. On investigating this, he found that the hooting was from a motor vehicle driven by an employee of a security company. There was an exchange of words between the employee and the member of the public. The employee took exception to the manner in which the member of the public was talking to him regarding the noise created by his hooting, after which he informed this person that it was “bloody well unacceptable.”
The member of the public apparently then stated to the employee “then stop behaving like one.” This was in response to the employee accusing the member of the public of talking to him like a child.
The employee continued that the member of the public asked him what he was doing, called him bloody stupid and a bloody idiot. When he apologised to the member of the public, this person continued that “you bloody black don’t deserve to be in this neighborhood.” The employee apologised a second time. Then the employee told him to stop swearing at him, and stated that if he did not do so, he would “moer you.”
The employee alleged that this member of the public continued that “your mind is black therefore you can’t think.”
The employee was then disciplined by the employer and dismissed.
At the arbitration hearing, the Commissioner held that the sanction of dismissal was too harsh by virtue of the fact that, amongst other things, there had been racial slurs directed toward the employee, and this constituted significant provocation.
In the Labour Court review, the employer sought to have the award set aside on grounds that the Arbitrating Commissioner totally disregarded the evidence led and failed to appreciate that the employee committed a serious offence.
The Court acknowledged that the arbitration award found the employee guilty of bringing the name of the employer into disrepute, and held further that the employee did use the word “moer” which was unwarranted.
The Court continued that “it is now well established in our jurisprudence that the test to apply in review is that of a reasonable decision maker. In applying the test of reasonable decision maker, the Court seating in review has to determine whether the outcome reached by the Commissioner falls within the range of acceptable and reasonable outcomes. The review court does not concern itself with the correctness of the outcome but its reasonableness.”
The Court held that the Commissioner’s award was reasonable, and the application to review the decision of the Commissioner was dismissed.
It was further noted by the Court that whilst “the Commissioner may well be wrong in his conclusion, that is not the test. The test is reasonableness, having regard to the circumstances and the totality of the matter or facts which where before the Commissioner.” The Commissioner’s decision was deemed reasonable, and therefore did not want interference by the Court.
by Tony Healy | Sep 5, 2018 | Discipline & dismissal
In essence, the preparation of a witness for a disciplinary hearing, is the same as that for an arbitration hearing. Our firm chairs disciplinary hearings across the country daily, and it has often been our experience that witnesses have either, at worst, not been prepare at all or, at best have been poorly prepared.
Witness preparation is crucial to both employers and employees. More often than not, the verdict will hinge on what testimony is given by witnesses. Other forms of evidence also play a role, but witness evidence is invariably the most important evidence. It is important to remember that evidence is led by witnesses in an attempt to influence the hearing chairperson, or arbitrator, that their testimony is credible and persuasive. If the evidence led is not led in a confident, credible and logically sequential sequence, the chairperson or arbitrator may well unimpressed by the testimony of the witness, and even confused to the extent that it is not possible to add any value to the evidence.
The preparation of witnesses need not be time consuming, and with a little planning and time, witnesses can be primed to lead cogent, relevant and most importantly, credible evidence.
To begin with, witnesses are frequently reluctant to give evidence. Disciplinary and arbitration hearing environments are understandably intimidating for witnesses. This trepidation has the potential to make them anxious to the extent that their evidence is less compelling that it needs to be. This to is a reason why witness preparation is important. As much as possible must be done to minimise witness anxiety to ensure that the value of their testimony is maximized.
So where do you begin? Well, first and foremost, one must identify which questions are going to illicit answers which best support one’s case. It’s not just question of identifying the relevant questions, but also the sequence in which they are to be asked and answered. For example, there must be a reason why question one is asked first, and the final question is asked last. It is also worth remembering that it is only a witnesses observations which are important, not their opinions.
For example, if a witness states that the employee looked to be under the influence of alcohol, this will be ruled inadmissible, as it is a witnesses observations, not opinions, which have vale as evidence.
Once all witness questions have been selected, in the sequence to be asked and answered, the asking and answering of the questions should be practiced with the witness for as long as it takes to ensure that all questions are answered in a way that ensures the anticipated answer for each question. This is critically important, as one of the most important guidelines in witness preparation is that the questioner should never ask a question that they do not already know the answer to.
Without prior knowledge of the answers to each question to be asked, the questioner is incapable of leading the evidence of the witness in a manner which best supports their case.
Next, witnesses should be informed that when they testify, they will be asked three sets of questions. To begin with, they will be asked the questions which they have been prepared to answer by the questioner; this is referred to as the witnesses evidence in chief. There is only one simple rule to remember when it comes to evidence in chief; such questions may not be asked in a leading way. This means that the question cannot be asked in a way which suggests the answer.
Thereafter, the witness is exposed to cross-examination. Cross examination is an opportunity for the witness to have his or her evidence in chief challenged. It is only during cross examination that leading questions are permitted. It is advisable to prepare one’ witness for cross examination, so that they can anticipate cross examination questions, and be prepared to deal with them during the hearing.
Finally, witnesses are re-examined. This is a second, and final. Opportunity for the questioner to put questions to his or her own witness. Again, no leading question are permitted, and importantly, re-examination questions may only relate to questions put to the witness during cross-examination.
It is simply not possible to present a case competently without the thorough preparation of witnesses
by Tony Healy | Sep 3, 2018 | Discipline & dismissal
Employees have an obligation to meet reasonable performance targets and objectives. In so far as an employees work performance is of such a nature that the actual performance is less than that which the employer can prove it can reasonably have expected from the employee, the employee will be deemed to have acted negligently.
This principle is related to an employee’s obligation to act with care, and not to perform as well as they are capable of performing. As noted in a recent arbitration award, the requirements for dismissal for a single act of negligence are (1) that the employee failed to exercise the standard of care and skill that can be reasonably expected of him or her, (2) that the lack of care and skill manifested itself in an act or omission that could have caused loss to the employer, (3) that the loss or potential loss to the employee resulted or could have resulted from the employees negligent act or omission, and (4) the negligence must be gross.
Gross negligence is a form of serious misconduct which can justify the sanction of dismissal, even on a first transgression.
Repeated acts of negligence which are not gross (ie: serious enough to warrant dismissal in its own right), could also warrant dismissal, if the employee has failed to respond positively to progressive disciplinary sanctions
When negligence is alleged by an employer, the so called reasonable person test is applied. In essence, this rule relates to an employer being reasonably entitled to expect a certain minimum level of performance from an employee, and once it has been established that the employee is capable of performing at this level, any subsequent performance which is inferior to this proven level of performance is deemed to amount to negligence on the part of the employee. Put differently, in cases of this nature, the employer seeks to prove that the employee was capable of avoiding the inferior work performance, level of production, and or quality of performance.
In Transnet Freight Rail v Transnet Bargaining Council and others (2001 6 BLLR LC), it was stated that negligence can be defined as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. This was reiterated in the arbitration case of Petrus Frederik Rautenbach v Cashbuild (Pty) Ltd [FSBF2638-17], when it was restated that “negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. Negligence can manifest in either acts or omissions”.
In the arbitration award of NUMSA obo Motsedisi Julia Tsilo v Ngwako Holdings (Pty) Ltd DRC/MINT 50247], it was emphasised that “The test for negligence was described by Driscoll C in the matter of Nkosi / Nampak (2010) 10 MEIBC at 8.14.1, as follows: The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm. The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission. To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion”.
The Supreme Court of Appeal had the following to say about gross negligence in the case of Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas & Another [2003 (2) Sa473 SCA], “it follows, I think, that to qualify as gross negligence the conduct in question ……. must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care”.
In the final analysis, negligence can be viewed as ‘blameworthy poor work performance’, as there is proof, on a balance of probabilities, that the employee has tender q quantity and/or quality of performance which is less than the employer can prove the employee is capable of.
If, on the other hand, it cannot be proven that the employee’s poor performance cannot be proved to be due to the employee performing below a level of performance they are capable of, the poor work performance may be related to incapacity, rather than misconduct.
by Tony Healy | Sep 2, 2018 | Discipline & dismissal
Who would have thought that your hairdo could lead to your dismissal? Well, the Department of Correctional Services concluded it did when dismissing a number of employees for wearing “dreadlocks”, Rasta style, and refusing to cut their hair when instructed to do so.
This matter was dealt with in the Labour Court case of Department of Correctional Services & another v POPCRU & others (Case No. CA6/2010).
A new Area Commissioner, who had been recently appointed, was of the view that discipline was lax, and that there was large scale non-compliance with departmental policies.
In particular, the Commissioner had concerns regarding poor compliance with security policies, inefficient acts of control, and compliance with the dress code in that certain employees mixed their uniforms and wore different hairstyles. A written instruction was then issued to all staff that they were required to comply with the dress code by attending to their hairstyles. Certain officers complied with the instruction, whilst others did not.
The Area Commissioner then wrote to the non-complying employees advising them that they faced suspension and granted them an opportunity to advance reasons why they should not be suspended.
The applicants then responded indicating that they had embraced Rastafarianism, and that the instruction to cut their dreadlocks “infringed their freedom of religion and constituted unfair discrimination on the grounds of their religion.” Other employees submitted that they wore dreadlocks for cultural reasons. One of the employees in particular, submitted that he wore dreadlocks because he had received a calling to become a traditional healer in accordance with his culture. Yet another of the employees submitted that his reason for wearing dreadlocks was related to him having a traditional sickness known as “Ntwasa”, and that his ancestors had instructed him to wear dreadlocks.
The employees were then suspended and charged with having contravened the Department of Correctional Services and disciplinary code and procedural resolution 1 of 2006, in that they had contravened the Department of Correctional Services dress code by wearing/keeping dreadlocks on official duty at Polsmoore management area. An alternative charge was that the applicants had failed to carry out a lawful order or routine instruction without just or reasonable cause by refusing to keep their hair in accordance with the dress code of the department of correctional services.
A disciplinary hearing was convened; the applicants were found guilty and dismissed with immediate effect.
Predictably the Labour Court held that whilst it may “accept the importance of uniforms in promoting a cultural discipline and respect for authority, we live in a constitutional order founded in a unique social and cultural diversity which because of our past history deserves to be afforded special protection. It is doubtful that the admirable purposes served by uniforms will be undermined by reasonable accommodation of that diversity by granting religious and cultural exemptions were justified.”
The Labour Appeal Court dismissed the claim and upheld the Labour Courts finding that the dismissal of the applicant was automatically unfair.
