Advocate Nicolene Erasmus
Double jeopardy
Moyo / Avery Dennison SA (Pty) Ltd [2011] 4 BALR 347 (NBCCI)
Mr Moyo, the employee argued that he was dismissed during March 2010. No disciplinary hearing was held, and he referred an unfair dismissal dispute to the NBCCI. A settlement agreement was reached in terms of which Mr Moyo was reinstated. After reinstating Mr Moyo, the employer convened a hearing and dismissed him again.
Commissioner Cachalia held that “reinstatement of an employee in my view does not diminish an employer’s right to hold an enquiry and determine whether an employee is guilty of misconduct even though the employee had initially been dismissed on the basis of one of the allegations of misconduct without an enquiry. In my view, it would be unfair not to allow an employer to charge an employee for acts of misconduct allegedly committed by an employee.”
“Where an employer dismisses an employee without following a fair process and then reinstates the employee and holds an enquiry, it has rectified a wrong that it had previously made. One cannot state that the holding of an enquiry subsequent to reinstatement is double jeopardy. It may have been double jeopardy had the employee been found not guilty of the charges and then charged again on the same offences and dismissed. I use the word “may” because labour law is about fairness. However, I need not delve into this issue as the facts of this case are different.”
The employee’s dismissal was upheld
Bringing an employer’s name into disrepute
NUMSA obo Kgatla / ABB SA (Pty) Ltd [2011] 4 BALR 371 (MEIBC)
Mr Kgatla, the employee who sent emails to fellow employees and third parties claiming that that the employer had not complied with the provisions of the Employment Equity Act, sanctioned job reservation and unfairly dismissed employees who raised these issues, was dismissed after being charged with making false allegations and bringing the name of the company into disrepute...
The Commissioner held that Mr Kgatla’s promotions and salary increases followed in quick succession. He had in fact received a 243% increase to his salary since his first permanent appointment in 2003. The employer submitted copies of its Employment Equity reports for 2005 and 2008 as well as confirmation of receipt of the Employment Equity reports for 2004, 2005 and 2007 and a copy of its Employment Equity Plan as proof that it had complied with the provisions of the Employment Equity Act.
Referring to Timothy v Nampak Corrugated Containers (Pty) Ltd (Labour Appeal Court case number DA22/08 dated 17 March 2010, the Commissioner held that it would be incorrect to assume that the offence of bringing the company’s name into disrepute required proof of intention. The Court held that the only question was whether the name of the company had in fact been besmirched and that the evidence had shown that there was at the least a possibility that the company’s reputation could be harmed.
In considering the appropriateness of the sanction the Commissioner pointed out that not only does the common law require an employee to at all times further the interests of his employer but also that the employer’s terms and conditions of employment required that he “be loyal to the employer and promote the business and reputation of the employer.” The dismissal was found to be fair.
Poor performance
Siwela / Sasol Oil [2011] 4 BALR 410 (NBCCI)
Although the employee’s work performance was not to the required standard for a period of three years, the employer’s decision to dismiss him had been based on his performance in the final year of his employment.
It was the employee’s case that he had been given poor leads, had a car problem, he had the oldest laptop which was problematic, his 3G was problematic, and he was instructed to refrain from visiting clients.
Referring to Workplace Law (8ed p54) the Commissioner points out that employees are deemed by law to impliedly guarantee that they are capable of performing the task they agree to perform, and that they will carry them out with reasonable efficiency. Employers likewise have a duty to provide employees with proper machinery, equipments and competent supervisors to enable an employee to perform part of their contractual obligation.
The employer disputed the employee’s claims. It was testified on behalf of the employer that the employee was not given poor leads, that he was not prevented from developing his own leads, that arrangements for an alternative vehicle were made and he had alternative resources to use as regards his problematic laptop and the 3G card. The employer’s version remained unchallenged.
The commissioner was therefore unable to find the employer to have thwarted the employee’s attempts to perform work to the required standard. The commissioner was not persuaded that the employee had submitted justifiable reasons for his lack of performance. The dismissal therefore was found to be fair.
Constructive dismissal
Pretorius / Golden Divident 405 (Pty) Ltd t/a Propspec & another [2011] 4 BALR 440 (CCMA)
After working for the employer for about a year as a marketing manager, the employee claimed that she was no longer receiving her salary or commission. She resigned, and referred a constructive dismissal dispute to the CCMA. She testified that she had sent more than 20 emails to the employer prior to her resignation and had many discussions with Mr Erasmus, director of the employer.
The Commissioner had to decide whether a constructive dismissal took place or not. For a claim to succeed it should be clear that the employee would have continued his relationship was it not for the unbearable circumstances. The word “intolerable” would therefore connote a wider ambit than conduct that involves a breach of contract or coercion. Material breaches of the employment contract are therefore not required but merely that the employee cannot be expected to “put up with it any more”. Mere intolerability was not per se unfair. One should also have regard for the employer’s reason for his/ her conduct. The test was objective and the conduct in its totality had to be scrutinised. The following five factors are to be considered in deciding whether constructive dismissal took place:
1.Did the employee intend to terminate the contract?2.Was the conduct objectively intolerable?3.Did the employer create the intolerability?4.Would the intolerable situation endure?5.Was termination the only remedy at the disposal of the employee? One should consider which other available processes were followed or exhausted. Concerning the last requirement the courts have confirmed that subjective feelings of an employee should be well-founded and other remedies should be exhausted.
The Commissioner only had the version of the employee (the employer was not present) who testified that the employer made her working conditions intolerable, thereby causing her to resign. This was mainly because her commissions were either not paid or paid very late. She was also obstructed from earning commissions when another person was appointed to market certain projects. She also received no salary or commission for several months.
The Commissioner was satisfied that the employer made the relationship intolerable and that it could not be expected from the employee to “put up with it any longer”.
The employee did make reasonable attempts to resolve the issue - there was also a meeting held in the offices of her attorney where certain undertakings were made by the employer, who failed to honour these undertakings. The employee had no alternative but to tender her resignation.
Compensation equal to 5 months salary was awarded to the employee.
For more information contact Nicolene Erasmus
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
