A Question of a Question…….. Part 2
We continue with our discussion on a rather interesting judgement (153 pages) has been handed down by the Constitutional Court.
We now take a look at the arbitration proceedings at the CCMA. We must bear in mind that an arbitration proceeding is a de novo hearing. In other words, it is not a re-hearing or re-presentation of the employer's disciplinary procedure.
It is a new hearing, in which decisions are made by the Commission based on evidence presented at the arbitration hearing and not on evidence presented at the employer's internal disciplinary hearing.
At the arbitration, a witness for the respondent employer (who was the supervisor of the applicant) was adamant that the applicant was fully aware of how to conduct searches. He testified that the applicant had been posted to that security checkpoint to conduct searches - that was his specific function.
He did however concede that the tasks assigned to the applicant would normally have been carried out by a more senior person. However, the reason that the applicant had been posted to this particular section was because of his long-standing experience ( about 14 years) in Protection Services - the security division of the employer.
The employers assistant chief chemist testified that in his view, the major losses that occurred which led to video surveillance being installed, were due to the poor quality of the metallics. According to this witness, the production yield loss was in the region of R500,000.
The applicant testified that he had received no training in relation to the search procedures, and further stated that he had actually objected to his posting to this particular section – the Redressing Section.
The Commissioner at arbitration rejected both of these claims by the applicant. He agreed with the employer's rule that searches should be conducted in a particular manner, and stated that it was a valid rule, and he held that the applicant had contravened the rule. But as we shall see later on, while the Commissioner agreed that the applicant had contravened the rule, he later agrees that the contravention had been “unintentional” or “ was a mistake.”
The Commissioner also took into account section 188(2) of the LRA which states that when a person is considering whether the reason for dismissal is a fair reason, he must take into account the Code of Good Practice – Dismissal.
The Commissioner, in his deliberations, did consider the Code, and in particular paragraph 7, which requires that the person determining whether dismissal for misconduct is fair, must consider whether the dismissal was an appropriate sanction.
The Commissioner also took the view that the concept of progressive discipline was applicable. In terms of this concept, employee behaviour is to be corrected through a system of graduated disciplinary measures such as counselling and warning.
The Commissioner considered that the applicants service record counted in his favour and he concluded that the dismissal was too harsh a sanction. His motivation for this conclusion was that there had been no losses suffered by the mine, the violation had been “unintentional or had been a mistake”, and that the applicant had not been dishonest.
Before making his award, the Commissioner also stated that he did not consider that the offence committed by the applicant had destroyed the element of trust in the employment relationship. The decision to dismiss was overturned, and the employer was also ordered to pay the applicant a certain financial compensation.
Let me give you my views on the matter. We now have an instance where, at a disciplinary hearing, the employer produced evidence to clearly show (in my view) a misconduct – a serious misconduct - on the part of the employee.
The employer was obviously suffering heavy losses. A part of the cause of the heavy losses appeared to be the poor quality of the metallics - as per the testimony of the assistant chief chemist. However, it was obviously a desperate situation - these losses were serious, and required the immediate attention of the employer.
The desperate situation required serious measures by the employer - including extreme tightening up of search procedures, in order to prevent any losses by theft or other unauthorised removal of product.
Evidence was led that one employee had been caught with some R40,000 worth of goods during an attempt by that employee to remove those goods from the employer's premises without authority. The situation, in my view, required the employer to take harsh measures, and to be consistent in his application of discipline to any employee caught violating the rules - including action against security employees negligently failing to carry out their duties properly.
It appears that at the disciplinary hearing, the only defence offered by the employee was that he had not been properly trained in search procedures - after having served in the Protection Services division of the employer for something like 14 years, and he stated that he had objected to the transfer to the Redressing Section in the first place. Evidence was led to show that the applicant had been properly trained - he signed a paper acknowledging that.
In other words, he was contending that he had not done anything wrong because he had not been trained, and also because he did not want to be there in the first place. That is how I read the matter. I have come across other case law, including arbitration awards, stating things like “Dismissal is the employer’s contractual remedy in the event of employee’s breach (or misconduct) – Exercise of such remedy will not be interfered with when operationally justified.”
Another one : “However, the principle remained that it was not for an arbitrator to interfere with an employer’s decision to terminate the services of an employee guilty of fraud or other serious dishonesty. It was the arbitrator’s duty to establish whether the dismissal was fair, not to substitute his own feelings of fairness for those of the employer………. And nor could the employee’s length of service affect the fact that the employment relationship had been rendered intolerable..”
Another thing that bothers me about this is arbitration award is the conclusion by the Commissioner that the applicant had “not been dishonest”, and that the violation of the search rule had been “ unintentional or was a mistake.” Did the applicant “ unintentionally” and “ by mistake” forget, or overlooked, or omitted to search properly in accordance with standing procedure - that he had allegedly been trained in and was aware of ?
How does one “ unintentionally” omit or forget or overlook to carry out a procedure that he is fully aware of ? How does one not carry out one's duties “ by mistake”? Does this mean that when an employee contravenes a rule of the employer, or, as is my view in this matter, is negligent - can he now put forward a defence of “ it was unintentional” or “it was a mistake” ?
If so, what happened to the principle that “ Nobody breaks a rule by accident. Nobody breaks a rule unintentionally, unless he was unaware of the existence of the rule” ? Does “ unintentional or was a mistake.” now mean the employer will now be required to actually prove dishonesty if the employee actually put forward such a defence?
These are some of the questions that arise in my mind. The respondent employer referred the matter to the Labour Court on review of the Commissioners award. We will look at that next week.