Advocate Nicolene Erasmus
Death threat
CEPPWAWU obo Thobejane / GP Packaging SA (Pty) Ltd[2011] 3 BALR 229 (MEIBC)
After threatening to kill his supervisor the applicant, a shop steward, was dismissed. The applicant denied having uttered the threats. The Commissioner noted that “where there are two conflicting versions of the facts the arbitrator should weigh up each version taking into account all relevant factors. I have to consider the evidence of the witnesses, as well as the documentary evidence, to determine which version is more probable in the circumstances...”
It was the supervisor’s version that after receiving the threats, he went to the police who gave him a protection order, and which was signed for by the applicant without protest. The applicant did not dispute the allegations when the police served it on him. The supervisors did not receive any further threats thereafter.
As far as the applicant’s version is concerned, the Commissioner had the following to say: “The applicant’s evidence... brought several improbabilities to light. He signed the receipt of the protection order without contesting or even questioning the allegations contained therein. That is not the probable conduct of an innocent person accused of such serious misconduct... The only reasonable inference is that by implication he thus admitted using those words. At first the applicant denied ... that he has any knowledge of the protection order that was served on him, despite the documentary proof that he signed for it. Later he changed his version in this respect when he was cross questioned and admitted that he now remembered the protection order being served on him. This deviation in his evidence has a negative impact on his credibility.”
To warrant dismissal, the threats must be serious, as is indeed the case here, where the supervisor was threatened with death. The employer cannot reasonably be expected to endure such threatening behaviour. I am satisfied that the employer could not reasonably be expected to continue employing the employee. Threats toward management in the manner described above surely would destroy the employment relationship.
The dismissal was upheld.
Misconduct before re-employment
NUMSA obo Mashiyi / Element Six (Pty) Ltd [2011] 3 BALR 251 (MEIBC)
After a R2.5 million robbery, the applicant was apprehended by the SAPS, where he remained in custody. When he reported at the workplace after his release, he was informed that his services were terminated for reasons of desertion. He appealed against his dismissal and was re-employed, whereafter he was charged with his involvement in the robbery and dismissed.
The respondent engaged the services of an expert to analyse the CCTV footages of the robbery. The expert’s analysis concluded that one of the robbers who was the only person wearing a balaclava, matched with the applicant. Also, a scrap metal dealer who was approached by the suspected robbers identified the applicant from about forty photographs as one of the robbers who attempted to sell him the product. The dealer also had the applicant’s cell phone number saved on his cellular phone.
According to the Commissioner, it is unheard of for an employer to terminate the services of an employee for an alleged offence that took place in the affected employee’s previous employment. Different is the case where an employer re-employs an employee with no knowledge of disciplinary infractions committed by the employee in his previous employment. Where an employer lacks knowledge of previous transgressions and engages the services of an employee innocently only to gain such knowledge after the inception of the new employment relationship, an employer may be at liberty to institute disciplinary action against the affected employee for such transgression.
Failure by an employer to institute disciplinary measures against an employee for suspected misconduct at the first available opportunity and without a reasonable explanation for the failure will give rise to the conclusion that the employer had condoned the deed. In this regard the Commissioner took into consideration the following factors:
- The applicant was apprehended by members of SAPS the day after the robbery as a prime suspect in the misconduct.
- When the applicant reported at the workplace he was informed that his services were terminated for reasons of desertion.
- The applicant appealed against the dismissal and was re-employed.
- The respondent then charged the applicant with his involvement in the robbery and dismissed him.
The Commissioner concluded that by re-employing the applicant, the respondent made a conscious and deliberate decision to engage the services of the applicant anew, afresh and to commence the employment relationship on a clean slate. Re-employment constitutes a new chapter in the affected employee’s life as an employee in a way that is not different from someone who has not previously worked for the employer. Accordingly it is unimaginable, irrational and unjust for an employer to accuse a re-employed employee for an offence allegedly committed under a lapsed employment contract.
The dismissal was found to be unfair, and reinstatement was ordered.
Resignation letter prepared by employer
Moggee / ADR Distributors [2011] 3 BALR 245 (MEIBC)
At a staff meeting, a discussion ensued with regard to whether or not the staff was happy in their work. The applicant indicated that he was happy, but that he was also “not happy” with regard to certain issues such as people doing nothing. In response, he was told that he was the main culprit and was advised to “put in his notice”, whereafter he said that “he will then rather leave”. When asked later where his notice was, the applicant stated that he did not know how to write the letter, with the result that the respondent’s secretary typed the letter and the applicant signed it.
The Commissioner noted that it was evident that the resignation came about as a result of views that the applicant shared with the respondent. Upon asking the applicant why he signed the letter of resignation, if he in fact did not want to resign, he stated that he had to sign the resignation, as the employer wanted him to put his notice in. He stated that he furthermore had a lot of respect for the employer.
According to the Commissioner, the evidence at most showed that the respondent suggested that the applicant resign, that the applicant then agreed to leave, that the employer expected the applicant to leave immediately and that the applicant then voluntarily signed the resignation letter as typed by the respondent’s secretary.It was found that the employee was not constructively dismissed.
Tips – benefit or not?
EHCWAWU / Royal Marang Hotel [2011] 3 BALR 257 (CCMA)
Does withholding tips from restaurant and bar staff constitute an unfair labour practice relating to the provision benefits?
In terms of an agreement between the parties, one of the benefits was tips given to the bar and restaurant staff by customers. This was normal practice, but then the employer started withholding the tips from the employees. This, according to the applicant, constituted an unfair labour practice relating to the provision of benefits.
According to the employer’s General Manager, the employer conducted a stock take and realised that it had lost an estimated R129 000, which the employer blamed on the employees. The tips were withheld in order to recover the employer’s losses.
Referring to Protekon (Pty) Ltd v CCMA & others (most pension, medical aid and other similar schemes fell within the scope of the term benefit) and Schoeman & another v Samsung Electronics SA (Pty) Ltd (a benefit is something extra, other than remuneration) the Commissioner concluded that gratuities fall within the category of other similar schemes and that the CCMA has the requisite jurisdiction to arbitrate an unfair labour practice dispute.
As to the question of an unfair labour practice, it was noted that it was common cause that the union and the employer have concluded a collective agreement. In terms of the collective agreement, the parties will consult each other before effecting any major changes to terms and conditions of employment.
The conduct of Royal Marang Hotel in withholding the tips/gratuities of employees was found to constitute an unfair labour practice and the employer was ordered to pay the employees the tips/gratuities that were withheld.
