by Tony Healy | Aug 23, 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’ misconduct.
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 Facebook, Twitter and WhatsApp.
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.
For example, my own firm was recently involved in a disciplinary hearing in which the employee had been summoned to a disciplinary hearing for having a WhatsApp status which read “F….. ……………. (company name), and the whole of …………. (company name) sucks …”.
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”.
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.
So, employees, exert considerable care when tempted to slag-off your employer on social media
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
On occasion, employers dismiss an employee instantly; such dismissal is referred to as a summary dismissal, the net effect of which is that such employee is dismissed without notice pay. The fairness of such a summary dismissal will hinge on whether the employer was justified in dismissing the employee summarily and withholding payment of the otherwise contractual notice period.
In essence, the payment of notice pay on termination is a function of whether the employer deems the employee to have committed a fundamental breach of his/her employment contract. Such fundamental breach would arise when, for example, an employee commits an act of gross misconduct. The test therefore is, as would be required in common law, “has the employee disregarded a fundamental term of his/her employment contract”.
Ordinarily, gross misconduct will be evident when an employee is dishonest, insubordinate, or acts violently. Acts of gross misconduct could also be specified in a company disciplinary code to address industry specific misconduct which would amount to gross misconduct. For example, the failure by an employee to maintain personal hygiene standards may constitute gross misconduct in a food manufacturing plant even though this would not be the case on a construction site.
A series of minor offences also has the potential to coalesce into a sufficient reason for summary dismissal. In the English case of Pepper v Webb [1969] a gardener, who was being reprimanded for his history of inefficiency and insolence, remonstrated by informing his superior that “I couldn’t care less about your bloody greenhouse and your sodding garden”; the English Court of Appeal upheld the summary dismissal of the gardener.
Grogan in Workplace Law (7th Edition) holds that summary dismissal occurs when an employer declares that it is no longer bound by the contract of employment from the date of dismissal, and that the effect of such summary dismissal is to preclude the employee from continuing to work in terms of the employment contract from the moment the dismissal takes place.
In Ngongoma v Education & culture & others (1992) it was held that under common law, an employee may be dismissed summarily only on the grounds of some misconduct justifying such summary dismissal and that it is only misconduct of such a nature that constitutes a breach of the contract of employment so material that it goes to the root of the contract.
If on the other and employee is found guilty of misconduct which is not gross in nature and does not amount to a fundamental breach of contract, the employer would be entitled to dismiss the employee (if appropriate in the circumstances) and pay the contractual notice pay.
In the final analysis, whilst summary dismissal is indeed an option available to employers from time to time, it remains an exceptional step rather than the norm.
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
The Labour Appeal Court passed judgment in the matter of Afrox Healthcare Ltd v the CCMA & others (Case No. JA37/09) on key dismissal decision considerations.
This case focused on the manner in which CCMA awards are to be reviewed in terms of the constitutional standard of reasonableness to be applied when determining whether, or not, a decision to dismiss is reasonable.
In this case, the applicant, together with another employee, had been charged with negligence relating to the care of a patient who had passed away whilst in their care. The specific charge against the applicant related to him having failed to supervise untrained staff, and failed to act in a reasonable manner when a suspicion of deterioration in the condition of the patient was reported.
The applicant was found guilty and dismissed. The applicant subsequently referred a claim of unfair dismissal to the CCMA.
The Commissioner at the arbitration hearing held that the dismissal of the applicant was unfair due to the fact that the employer had failed to substantiate its case of lack of supervision and unreasonable conduct leading to the death of the patient, for reasons relating primarily to the fact that the employer had not called the applicants colleague to testify at the arbitration hearing. The applicant was reinstated with 12 months compensation.
The employer sought to review the finding of the Commissioner at the arbitration that the dismissal of the employee was unfair on grounds that there was no rational connection between evidence placed before the Commissioner, and his conclusion.
The Labour Court was now required to review the Commissioners award.
The Court conceded that the employer had relied mainly on documentary evidence during the arbitration proceedings, and confirmed that it was the task of the Labour Court to “consider the award in accordance with the reasonable decision maker standard propounded by the Constitutional Court.”
The Labour Court held that the Commissioner clearly did not take proper account of the material placed before him and that he failed to conduct a proper appraisal of some critical portions of the evidence presented.
The Court concluded that the Commissioner indeed omitted to consider evidence placed at his disposal, showing that the applicant had been remiss in his supervisor responsibilities.
The Court noted that an award may be set aside if it is one that a reasonable decision maker could not reach; the reasonable decision maker yardstick crafted by the Constitutional Court is “none other than that in the absence of a rational objective basis between the decision arrived at and the material placed before the decision maker”, the relevant decision is clearly not one which a reasonable decision maker would have arrived at.
The award of the commissioner was reviewed and set aside, and the dismissal of the applicant confirmed as having being fair.
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by Tony Healy | Aug 23, 2018 | Discipline & dismissal
Employers have, for some time, toiled with the vexed question of to how to deal with incarcerated employees.
The Labour Appeal Court (LAC) in SAMANCOR Tubatse Ferrochrome v MEIBC & others (Case No.JA57/08) addressed this conundrum providing some clarity.
In this particular case, the employee was arrested on suspicion of having committed an armed robbery. He informed his employer of this development and remained in custody, and was therefore absent from work, for approximately 150 days. The employer then dismissed the employee on grounds of incapacity in that “he was physically unable to tender his services”.
He was informed of his dismissal in writing by the employer, which was delivered to the employee at the Police station where he was being held.
On being released from custody, the employer held a post-dismissal hearing whereat it was held that the employer could not have been expected to put in place a temporary arrangement for such a lengthy period of time which would have enabled the employee’s position to have been kept open for him.
This was motivated by the fact that the employee held a key position (a furnace operator) and that the criminal case against the employee was still pending against the employee at the time of the post dismissal hearing. In addition, this was the second instance in which the employee had been arrested and thus been absent from work.
At a subsequent arbitration hearing, it was held that the dismissal of the employee had been substantively unfair in that the employer had not taken proper account of the fact that the employee had no control over his incarceration and its duration. In addition, the employee had not been afforded an opportunity to present his case prior to being dismissed.
The employer was then reinstated.
This finding was upheld on review at the Labour Court.
The LAC however adopted a different view to both the CCMA and the Labour Court. The LAC held that the concept of ‘incapacity’ may indeed have application in cases of incarceration. In such circumstances, an employer would be required to address the matter via an incapacity procedure.
This would entail assessing the extent of the incapacity including the temporary or permanent nature thereof and explore alternatives to dismissal.
Prolonged absence and the skilled nature of the employee’s position, as was the case in the LAC matter, would be compelling reasons warranting dismissal. The LAC went so far as to confirm that it cannot be the case that “incapacity which is outside the control of the employee cannot be a cause of dismissal”.
However, incarcerated employees must be afforded an opportunity to state their case prior to, not after, being dismissed. This could take the form of the incarcerated employee being invited to make submissions, if not in person, in writing, or via an appointed third party such as a family member or colleague.
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by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Employers will frequently consider it necessary to suspend an employee, on full pay, pending the outcome of an investigation into suspected misconduct on the part of the employee, and/or to similarly suspend an employee pending the outcome of a disciplinary hearing.
This is ordinarily referred to as ‘precautionary suspension’, and is resorted to when an employer is of the reasonable opinion that its’ business interests are potentially at risk due to the employee continuing to be present during an investigation into suspected misconduct, and/or prior to the concluding of a disciplinary hearing.
At the crux of this initiative to suspend, is a belief that the continued presence of the employee during these periods, has the potential to compromise the employer.
Such precautionary suspension should not be confused with suspension without pay, which is a form of disciplinary sanction.
As held in Mabilo v Mpumalanga Government & others (Labour Court case no. J4158/98), in cases of precautionary suspension “the employee is entitled to a speedy and effective resolution of the dispute. Employers must not be allowed to abuse the process. The investigation must be concluded within a reasonable time taking all the relevant factors into consideration and the employee must be informed without undue delay about the process steps that the employer is initiating. This may take the form of allowing the employee to return to his or her work or alternatively furnish this individual with a charge sheet summoning the individual to a properly constituted disciplinary hearing’.
The Labour Court added that “The disciplinary hearing must be initiated within a reasonable time of the individual being suspended”, further noting that “The objects underlying the right to a speedy investigation, without unreasonable delay, can be stated to be the following (1) To prevent the unnecessary disruption in the life of the employee, (2) To minimize the anxiety and concern of the employee, and (3) To limit the possibility that the employee will not be allowed a fair hearing”.
Although there is no need to convene a formal ‘pre-suspension’ hearing before suspending an employee on precautionary grounds, the weight of authority does suggest that employers should afford employees an opportunity to make representations to the employer, prior to the precautionary suspension being confirmed.
Put simply, the employee should be informed why the employer believes that precautionary suspension is warranted, and the employee should be afforded an opportunity to have his or her say on this proposal, before the suspension is confirmed.
Precautionary suspension could constitute an unfair labour practice in certain circumstances, such as (1) it is unpaid, (2) endures for an unduly long period of time, (3) inadequate reasons are tendered by the employer.
Precautionary suspension should not be confused with suspension without pay, which is a disciplinary sanction typically reserved for occasions when dismissal would ordinarily have been justified, but compelling mitigating factors suggest that a lesser sanction may be warranted.
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by Tony Healy | Jul 23, 2018 | Discipline & dismissal
Employers have still not universally grasped the meaning of a bona fide consultation process when undertaking a consultation process pursuant to a proposed retrenchment. I still, in my own firm, still come across employers who are of the understanding that a retrenchment consultation process can be completed in a single sitting. This amounts to an employee going to work on any given day full of the joys of Spring, and going home retrenched.
The applicable retrenchment law, principally section 189 of the Labour Relations Act and the Code of Good Practice” Operational Requirements , places a much more procedural burdensome process on employers contemplating retrenchment. It is a process which requires thoughtful contemplation and consultation, in a manner which, on subsequent scrutiny, will show that the consultation process was a genuine consensus seeking process. Seeking consensus on what?
Well, to begin with, consensus on ways of avoiding or delaying the proposed retrenchment, and if this is not possible, ways of mitigating the adverse effects of any pending retrenchment. Furthermore, the minutes of consultation meetings must show that a wide range of issues were consulted over, including selection criteria and the severance pay to be paid.
It is typically, but not only, the retrenchment consultation meeting minutes which are relied upon to determine the true nature of a consultation process. Put differently, do the consultation minutes reflect a robust consultation process, or do they show that minimal time was spent consulting with little if any give and take on the part of the employer?
The Labour Court judgment in Jenkin v Khumbula Media Connexion (Pty) Ltd (Case No. D914/08) addressed the question of what may be referred to as ‘microwave retrenchment’.
The applicant had been retrenched after one consultation meeting which, the Court held, left much to be desired. The Court criticised the respondent employer for having retrenched the applicant “after only one meeting had taken place”. The Court quoted the Labour Appeal court which had, in Johnson & Johnson (Pty) Ltd v CWU (1999) held that “… a mechanical check list kind of approach to determine whether s189 has been complied with is inappropriate”.
Returning to the Khumbula Media Connexion case, the Labour Court added that “the meeting held with the applicant was not sufficient to constitute consultations as required by section 189”.
Employers, in the main, lose retrenchment cases due to either inadequate consultation and/or the adoption of subjective (rather than objective) selection criteria. The procedural requirements to ensure a procedurally fair retrenchment are not overly burdensome. There is very little reason why a retrenchment process cannot, with careful consideration of the retrenchment provisions of the Labour Relations Act, be implemented in both a substantively and procedurally fair manner.
In short, a process which seeks to give a veneer of legal compliance will be viewed as precisely that, a hurried, and ultimately procedurally unfair, hit and run rush job
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