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Sick leave abuse, poor performance and the disciplinary code

By Judith Griessel, Griessel Consulting

 

Absenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Looking for a quick fix when reaching the point where frustration levels become intolerable, is not the answer.    

 

Introduction

Absenteeism and poor performance are two of the most unmanaged areas in the workplace – which can be due to fear of conflict, procrastination, lack of control and in many instances, lack of knowledge.

 

We are regularly contacted by employers who have reached a point where they have no tolerance left for problems with an employee in this regard and then want a quick solution for ending the employment relationship, usually in the form of a disciplinary hearing on a charge of “sick leave abuse” or “poor performance”, as mentioned in their disciplinary code. 

 

The mere fact that “sick leave abuse” and “poor performance” may be framed as offences in an employer’s disciplinary code, does however not automatically mean that employees could therefore always be disciplined when taking frequent (and suspiciously timed) sick days or whenever their performance is not up to standard.  The employer must be able to prove that the employee’s lack of performance or frequent absences actually constitute misconduct on the part of the employee. If this is not the case, then a quick disciplinary route will not be an option and could give rise to an unfair dismissal claim. 

 

Misconduct vs Incapacity

In terms of the Labour Relations Act, an employee can be dismissed for reasons relating to his/her conduct, capacity, or for the employer’s operational requirements. Such dismissals must be for a fair reason and a fair procedure must have been followed. In Schedule 8 of the Act, an explicit distinction is made between the substantive and procedural requirements for misconduct- and incapacity dismissals respectively.

 

Misconduct refers to situations where an employee is capable of meeting workplace standards or rules, but fails to do so without an acceptable reason. In other words, the employee breaks a rule or standard in circumstances where he or she could have complied, but either refused or failed to do so. In this case, fault / blameworthiness on the part of the employee is implied and a disciplinary process is therefore appropriate. 

 

Incapacity refers to an employee’s inability to meet and adhere to acceptable and reasonable workplace standards – in this scenario, the employer’s performance- or attendance standards. If an employee is unable / does not have the capacity to meet these standards due to factors out of his/her control, it cannot be misconduct and disciplinary procedures are not applicable. Instead, a counselling process addressing the problematic issues (e.g. lack of skills/competence, or ill health) is appropriate. This process is usually a longer process that could, subject to the requirements as set out in Schedule 8, also lead to dismissal of the employee, but will be regarded as a ‘no fault’ dismissal.

 

Sick leave abuse

Excessive sick leave absenteeism creates numerous problems for managers and fellow employees and also evokes emotional responses - employers believing the sick leave is consistently abused, whereas employees believe that they have a right to utilise their full sick leave entitlement. I do not propose to offer a solution to this ever-present dilemma, however it is important to understand the different options available to employers to manage this.

 

Employees have a common law duty to render services during their contracted working hours. The exception to this duty is when the employee can show that he/she has a valid reason to be absent. The onus is on the employee to prove this. Illness is however a fact of life and employees will get ill. In practice, most employers would therefore simply accept sick notes on face value; or if a sick note does not comply with the legal requirements for granting paid sick leave, simply make it unpaid leave. If the employee takes frequent sick leave (even if they produce a sick certificate every time) and the employer does not challenge or investigate this, it could be argued that the employer has accepted the reason for the absence on each occasion as valid – and therefore that it cannot be misconduct or abuse.

 

If the employee however lies about the reason and claims to be ill when this is not the case, this will be a breach of contract (misconduct) that can justify the implementation of disciplinary action, and possible dismissal. Sick notes are not sacrosanct and are essentially hearsay evidence. They can be investigated and either be verified or found to be false. The employee may for example be seen at a party or sporting event while claiming to be ill, which requires an explanation. The doctor who supposedly issued the sick note, may not actually exist. If the employer’s investigation produces evidence of likely misconduct, a disciplinary process is prudent – either on the basis of unauthorised absence or for misrepresentation of information to the employer.

 

Sick absences (paid or unpaid) that have previously gone unchallenged, cannot become misconduct later on simply because a pattern of frequent sick absences emerges over time. The employer needs more than just a pattern – there will have to be surrounding circumstances to contribute to the likelihood of deception in relation to this pattern, before misconduct may be indicated. The employer needs to present a prima facie case that the employee probably lied about being sick on some of all of the absences and therefore abused his/her sick leave, before the burden passes to the employee to rebut this inference.     

 

If however such investigations have not been done; or sufficient proof of probable misconduct and fault on the part of the employee is not available, the employer cannot address the frequency of sick absences by way of a disciplinary charge for sick leave abuse. This does not mean that the employer has no recourse to address frequent sick absences and the resultant loss of productivity. An incapacity process relating to ill health can be initiated with such employees, with a view to determine if they have the health capacity to consistently deliver on their contractual obligations. This would require the employee to cooperate with a medical investigation, following the principles in Schedule 8 (items 10 and 11).

 

This scenario was considered by the Labour Court in General Motors South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (2018) 39 ILJ 1316 (LC) (30 January 2018). The court made the following observations:

  • “The need to maintain satisfactory levels of attendance was clearly a capacity that an employee was required to demonstrate to remain employed. The fact remains that in each instance, the source of the alleged incapacity or inability to comply with attendance requirements was ill- health.”

  • Reference was made by the court to AECI Explosives Ltd (Zomerveld) v Mambalu [1995] 9 BLLR 1 (LAC) and the Labour Appeal Court’s acceptance that persistent absence from work because of genuine ill-health is a legitimate ground on which to terminate employment, and one that relates to the capacity and not the conduct of the employee. “It seems to us that the company, having accepted the authenticity of the medical certificates, was entitled to rely only on incapacity. It was entitled to dismiss the applicant… For his incapacity to perform his job with such incapacity [was] due to persistent absence from work because of genuine ill-health.”

  • The court also referred to Hendricks v Mercantile General Reinsurance Company (1992) 15ILJ 34 (LAC) as authority for the proposition that substantive fairness in such circumstances requires an assessment of whether the employer can fairly be expected to continue the employment relationship given the nature of the incapacity, its cause, the prospect of recovery, improvement or recurrence, the period of absence and its effect on the employer’s operations and on other employees, and the employee’s work record and length of service.

 

In practice therefore, the following could apply where there are frequent sick absences and an incapacity process is utilised:

  • The frequently absent employee is genuinely suffering from ill health and could potentially be dismissed for incapacity;

  • The medical investigation shows that the employee has no real health problems, in which case the employer will know to scrutinise and investigate each sick absence in future, to determine if the employee was really sick or should be charged with misconduct;

 

The employee will in any event realise at this point that his/her job may be on the line either way, if the frequent sick absences continue.

 

A tip from employers who have been able to manage their absenteeism better than most, is to introduce a policy that any employee who has been absent for health reasons, may not start their duties upon their return to work, before they have sat down with their manager for a ‘welcome back’ interview - regardless of the duration of the absence or whether they submit a sick note or not. During this interview, the manager can confirm that the employee is well enough to resume work; take note of any medication that may affect their performance; and scrutinise any sick note properly in the presence of the employee. Even if the nature of the ‘medical condition’ is not disclosed, the authenticity of the sick note and the veracity of its contents could be investigated.

 

Poor Performance

Poor work performance of an employee is another aspect that can cause confusion and which requires a clear understanding in order to manage appropriately. An employer is entitled to determine rules and reasonable performance standards for its employees and can expect them to comply with these. All employees are also subject to the common law duty to always exercise the required care in relation to their employer’s property and its services. Whenever an employee does not meet the required performance standards, the employer is entitled to take steps to address this.

 

An employer may be inclined, due to irritation at the non-delivery on the part of an employee and the losses this may cause, to ‘punish’ the employee by launching disciplinary proceedings. However, once again it is important to make the distinction between misconduct and incapacity arising from poor work performance from the start, because dismissal based on incapacity requires a very different procedure compared to the disciplinary procedure associated with misconduct. Choosing the wrong process can have far-reaching consequences, as will be discussed below.

 

One should not get stuck on the specific phrase ‘poor performance’ as being only indicative of incapacity (as per Schedule 8) – the term is often used in a generic sense, and the term is also used by employers in their disciplinary code. The focus of the employer must be on establishing the real reasons for the sub-standard performance and then decide on the appropriate process to address these.

  • If the under-performance is the result of the employee’s inability to perform adequately (lack of skills, incompetence), it amounts to incapacity. Items 8 and 9 of Schedule 8 will be applicable.

  • Misconduct involves an element of blameworthiness on the employee’s part – i.e. the employee is able to perform at the required standard but fails to do so, usually through negligence. This calls for a disciplinary process.

 

Misconduct in this context is often formulated and presented to the employee as a ‘negligence’ charge. Strictly speaking, negligence is a state of mind and the allegations should probably rather refer to the actions or omissions on the part of the employee that resulted in the unsatisfactory performance. The basis for the employee’s culpability is however not the act or omission itself, but rather the lack of care and/or diligence that accompanied the act or omission. Employees owe a duty of care to their employers and the failure of an employee to meet the required standard of care that would be exercised by the reasonable person, constitutes a breach of that duty. If a reasonable person in the same position as the employee would have foreseen the harm resulting from his/her acts or omissions, and would have taken steps to guard against that harm, but the employee failed to do so, the employee was negligent in the performance of his/her duties. (See Ndlovu / Sefako Makgatho Health Science University (SMU) [2018] 8 BALR 907 (CCMA))

 

The distinction between the two types of poor work performance is however not always clear cut, which has given rise to interesting case law – as per the Labour Court in Consol Glass v National Bargaining Council for the Chemical Industries and Others (JA5/15) [2017] ZALAC:  “The dismissal of an employee on account of his/her culpable poor work performance (misconduct) at times overlaps with his/her dismissal on the basis of his/her inability to do the work (incapacity).”

 

In the recent case of Unitrans Supply Chain Solutions (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) and Others (2018) 39 ILJ 2573 (LC) (15 August 2018), the employee was dismissed for dishonesty and deliberately falsifying payroll information which caused a shop steward to receive remuneration he was not entitled to.  The arbitrator found that at worst the employee did not carry out his duties as he should have (i.e. negligence, not dishonesty); and that in any event the employer should have treated the matter as a case of poor performance (incapacity) rather than misconduct involving dishonesty. Reinstatement was ordered.

 

The Labour Court held a different view and determined as follows:

  • An arbitrator deciding the fairness of a dismissal must assess the fairness thereof in relation to the reason given by the employer. If the employer cannot justify the dismissal on that basis, it will fail. What an arbitrator should be very wary of is to consider whether the employer ought to have dealt with the employee’s conduct on a completely different basis and then evaluate the fairness of the dismissal with reference to the test applicable to that type of dismissal, when that was not the reason advanced by the employer for the dismissal. If the arbitrator is satisfied incompetence rather than misconduct was the explanation for the employee’s behaviour, then the employer will not succeed in justifying the fairness of the dismissal based on misconduct.

  • “Secondly, in a case of misconduct when the employee does not raise incapacity of some kind as a defence, it is improper of an arbitrator to make findings on this basis when the employee themselves had not raised it. That is tantamount to making out a case for a party and gives rise to an inference of possible bias on the part of the arbitrator ............. It led the arbitrator to take his ‘eye off the ball’ so to speak, and to focus on a defence for Juries of his own making, instead of dispassionately assessing the probabilities whether Juries’ conduct most probably reflected negligence rather than wilful misrepresentation of hours worked......... It was not for the arbitrator to speculate about the outcome of a potential defence that was never even advanced at the arbitration.”

  • There simply was insufficient evidence for the arbitrator to reach the conclusion that the overpayments were merely a result of negligence on Juries’ part, when there was significant evidence that cried out for a coherent explanation from Juries as to how it could simply have been an error rather than deliberate. Thus, while the arbitrator was willing to speculate about errors that might have been made, the arbitrator did not consider evidence of ‘errors’ made in Coetzee’s favour, for which no explanation was provided ........... By construing the issue as being one of incapacity, the arbitrator was able to skirt the obvious deficiencies in Juries’ defence that his conduct was not intentional.”

 

It is therefore important for employers to look carefully at whether performance issues are caused by ‘fault’ on the employee’s part or whether competencies are lacking which could be addressed by way of reasonable guidance. If the employee’s sub-standard performance is due to incompetence on his/her part, the employer will have to invest the necessary time in performance management and an incapacity counselling process, rather than taking a disciplinary shortcut.

 

Having said that, it is trite that the normal process requirements for a dismissal for poor work performance (incapacity) should not be as strictly applied in the case of a manager or senior employee whose knowledge and experience qualify him/her to judge for him/herself whether he/she is meeting the standards set by the employer; or where the degree of professional skill required is so high and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in accordance with those high standards is enough to justify dismissal. (See Somyo v Ross Poultry Breeders (Pty) Ltd (JA9/97) [1997] ZALAC 3)

 

Conclusion

It is clear that employers need to actively manage sick absenteeism and poor performance in respect of their employees – and to start the applicable processes as soon as a problem is identified. Procrastinating and hoping for improvement will achieve nothing and only increase frustration levels of management and fellow employees. If the problem is given attention from the start and the employee is put on terms, there is often a good chance that it might be rectified. At the point where the situation has already become intolerable and the employment relationship has deteriorated, it is difficult to take a few steps back and commit to a constructive process.

 

For more information, please contact Judith at 

Article published with the kind courtesy of Griessel Consulting www.griesselconsulting.co.za

 

 

 

 

 

 

The Risk Of Departing From Disciplinary Guidelines

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Chelsea Roux, Candidate Attorney, Werksmans Attorneys

 

Issue

The risk of departing from a disciplinary guideline when imposing a sanction on an employee.

 

Summary

Disciplinary codes are intended to be used as guidelines in the application of discipline in the workplace. Employers may depart from such codes albeit not for arbitrary or invalid reasons. In other words, the employer may only depart from same for good cause. This is because employees should have some degree of certainty regarding what sanction may be imposed upon them in circumstances where they commit misconduct.

 

Facts

In the matter of Mushi v Exxaro Coal (Pty) Ltd Grootgeluk Coal Mine [2019] ZALAC 44 (13 June 2019) (“Mushi“) the Labour Appeal Court (“LAC“) dealt with, among others, the above issue.

 

The Appellant, Hosea Mushi (“employee“), had been employed by the Respondent, Exxaro Coal (Pty) Ltd (“employer“), at the Grootgeluk Coal Mine for 24 years.

 

One evening while the employee was on duty driving an oversized coal haul truck, he reported to his foreman that the shovel operator was loading the truck in an unsafe manner. The foreman instructed the employee to continue loading the truck while he observed the process. The foreman radioed the employer that he would board the truck at the loading area. The employee refused to let the foremen board the truck at this area. The foreman proceeded to walk towards the loading area and the employee moved the truck forward causing the foreman to move out of the way.

 

A disciplinary hearing was held arising out of the employee’s conduct. The employee admitted to having behaved improperly but denied having undermined the authority of the foreman or threatened his life. The employer’s disciplinary code, which is expressly recorded as being a guideline, provided that a final written warning be issued for misconduct of this nature. However, it was decided that the employee be dismissed for having refused to obey an instruction of the foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck.

 

Commission For Conciliation, Mediation And Arbitration (“CCMA”)

The employee referred a dispute to the CCMA. At the arbitration both parties agreed that the misconduct committed was not in dispute but that the issues to be determined were:

  • the appropriateness of the sanction; and

  • the issue of consistency because the foreman had not been disciplined for deviating from the employer’s safety rules.

 

No oral evidence was led by the parties.

 

The arbitrator agreed that there had been an inconsistency on the part of the employer in the application of its disciplinary code. Further, he held that the charges against the employee amounted to a duplication or “mutation” of charges as it all stemmed from one offence.

 

The arbitrator had consideration to the following factors in finding the sanction of dismissal to be inappropriate:

  • the employee had not been charged with gross insubordination;

  • there were no aggravating circumstances to prove that progressive discipline was inappropriate;

  • the employee had been employed for 24 years;

  • the employee had a clean service record; and

  • the employee had shown remorse for his actions.

 

An award of reinstatement and back pay of R77,398.72 was made in the employee’s favour. A final written warning was however imposed on the employee which would come into force on the date of his reinstatement and expire on a date as prescribed by the disciplinary code.

 

Labour Court

The employer successfully took the arbitration award on review.

 

The Labour Court found the award reviewable on the basis that the employer had been prejudiced by not having an opportunity to address the issue raised by the arbitrator relating to the duplication of charges. The Labour Court found further that the charge need not have been for “gross” insubordination and that since the employee admitted to having endangered the life of the foreman, it was enough to justify dismissal.

 

The Labour Court set aside the CCMA’s award on the basis that it was so unreasonable that a reasonable arbitrator could not have come to the same conclusion and substituted it with an order that the employee’s dismissal was fair.

 

LAC

The employee thereafter approached the LAC where he argued that:

  • the Labour Court had erred in considering all three charges when the arbitrator had not found the employee guilty of all three;

  • he did not plead guilty because he did not accept that he had acted in an unsafe manner or endangered the life of the foreman but conceded that he did not carry out the foreman’s instructions;

  • as a result of the above, his conduct amounted to insubordination;

  • the Labour Court erred in finding that the arbitrator had acted unreasonably; and

  • because he was a first offender and in terms of the employer’s disciplinary code, a final written warning was the appropriate sanction.

(Emphasis added)

 

The employer opposed the appeal and argued that:

  • the arbitrator exceeded his mandate in finding that the three charges were a duplication of each other when the only issue before him was whether dismissal was appropriate sanction;

  • the Labour Court was correct in finding that the duplication issue was raised for the first time by the arbitrator and that the parties accordingly did not have an opportunity to address the issue;

  • the arbitrator’s criticism that the employee should have been charged with gross insubordination was given without merit because the disciplinary code does not provide for “gross” misconduct; and

  • the arbitrator had committed a reviewable irregularity by not considering the applicable working conditions, the employer’s statutory obligations and its rules and procedures when determining an appropriate sanction.

 

The LAC held that the arbitrator was only tasked with determining the appropriateness of the sanction and whether the employer was consistent in the application of its disciplinary code. The LAC found that the employee had not admitted that his conduct threatened the life of the foreman. There was no evidence led to suggest this was the case. The issue then was whether insubordination warranted dismissal on the facts of the matter.

 

The LAC held that the disciplinary code was expressly recorded as being a guideline and that the appropriate sanction for insubordination, a refusal to obey instructions, misuse of property or improper behaviour is a final warning. The failure to charge the employee with ‘gross misconduct’ did not alter the nature or degree of the misconduct on the facts of the matter.

 

The LAC stated that “disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace.” Departures from it should not be for arbitrary or invalid reasons. It held further that where the disciplinary code is expressly stated to be a guideline, a “plausible and reasonable justification” for the alternative sanction imposed must be given. Factors such as the gravity of the misconduct and aggravating or mitigating circumstances should be considered. With reference to this case, the employer was required to prove that dismissal was a fair sanction.

 

Furthermore, the LAC held that although health and safety rules are of paramount importance, no evidence was presented to show that the foreman’s life was endangered by the employee’s conduct (Emphasis added). The LAC found, therefore, that the arbitrator was correct in his conclusion that dismissal was too harsh a sanction.

 

Importance of the case

Disciplinary codes, though often merely guidelines, nonetheless provide an element of certainty for employees. They also assist in ensuring that discipline is consistently applied. While employers may depart from the guidelines they can only do so in appropriate circumstances. An arbitrary decision to do so may render the imposition of a harsher sanction (such as dismissal) unfair.

 

For more information, please contact Jacques Van Wyk at  or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com

 

 

 

 

 

 

 

The competency of incitement as a disciplinary charge: An insight into the charge of incitement

By Aadil Patel, Director, Anli Bezuidenhout, Senior Associate and Rowan Bromham, Candidate Attorney, Employment Law, Cliffe Dekker Hofmeyr

 

In the recent decision of Economic Freedom Fighters v Minister of Justice and Constitutional Development (87638/2016) [2019] ZAGPPHC 253, the High Court pronounced on the definition of the crime of incitement and defined it as the intention, by words or conduct, to influence the mind of another in the furtherance of committing a crime. The decisive question being whether the accused intended to influence the mind of another towards the commission of a crime.

 

As per the definition above, for an employee to be charged with incitement, the employer must show that the employee in question sought to influence the mind of another employee to commit a crime. In the case of Albion Services CC v CCMA (D 275/10) [2013] ZALCD 12, the Labour Court affirmed that the test for incitement is whether an employee acted in such a manner so that ‘he reached and sought to influence the minds’ of his fellow employees.

 

Incitement is mostly used as a charge in the context of strike action, where one or more employees are found to have incited fellow employees to take part in strike action. When charging an employee for such offences, the employer is required to draw up a charge sheet and decide which charge in the disciplinary code fits the transgression. This is a fundamentally important exercise as the employer’s case will stand or fall by these charges.

 

In this context, the definition of incitement as provided by the High Court has the potential to create difficulties for an employer as it is extremely broad and is wholly dependent on the commission of a crime. These difficulties are further reinforced by the fact that section 64 of the Labour Relations Act, No 66 of 1966 (LRA) specifically provides that every employee has the right to strike.

 

Strike action would only be regarded as being unlawful when it is in violation of the provisions of the LRA. Therefore, if an employee were to influence the minds of fellow employees to institute strike action in accordance with the LRA, that employee would not be guilty of incitement as the strike would not be unlawful. Further, where an employee calls a gathering or meeting with a number of non-striking employees to ascertain whether those employees will engage in unlawful strike action, it cannot be said that the employee has gone far enough to be charged with the crime of incitement.

 

For an employee to be found guilty of incitement, extensive evidence would need to be led which shows that the employee reached and sought to influence the minds of his/her fellow employees to commit unlawful strike action.

 

It is clear that a charge of incitement is wholly dependent on the commission of a crime and it is unlikely that employers will have much success in charging employees for this offence at disciplinary enquiries. In the absence of clear evidence, it may be best to avoid charging employees for such an offence.

 

For more information please contact Aadil Patel at  or Anli Bezuidenhout at

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

Reinstatement Not Always An Appropriate Remedy

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Chelsea Roux, Candidate Attorney, Werksmans Attorneys

 

Issue

Whether reinstatement must always be awarded where a dismissal is found to be substantively unfair.

 

Summary

In certain instances, the Commission for Conciliation, Mediation and Arbitration (“CCMA“) or the Court, may deviate from the obligation to award reinstatement where a dismissal is found to be substantively unfair. Circumstances warranting a departure from the standard position, that reinstatement must be awarded, are, however, exceptional and include where reinstatement is impractical or the circumstances are such that a continued employment relationship would be intolerable.

 

Facts

In AFGEN (Pty) Ltd v Ziqubu 2019 the Labour Appeal Court (“LAC”) considered this issue.

 

 

The respondent employee, Ntombizodwa Ziqubu (“employee”), had been employed with the applicant employer, AFGEN (Pty) Ltd (“employer”), from January 2011 for just over a year. The employee had suffered from depression and was on sick leave for two months during 2011.

 

In December 2011 the employee was charged with misconduct for (i) sending unauthorized emails to customers and (ii) making unlawful statements in the emails pertaining to a meeting which the employer was to convene with the employee regarding her work performance. In the emails the employee asked customers of the employer to provide a report on their dealings with her so as to assist her in a work performance meeting to be convened by the employer. No work performance meeting was scheduled as averred by the employee. The employer only became aware of this after several customers complained about having to complete the report.

 

A disciplinary hearing was held during which the employee was found guilty on both charges and issued with a final written warning (“First Final Written Warning”). The employee referred an unfair labour practice dispute to the CCMA.

 

In January 2012 the employee was once again charged with misconduct for the same offence relating to the emails sent to customers. The charges were that:

  1. the trust relationship had broken down;

  2. the employee had brought the name of the company into disrepute;

  3. the employee was insubordinate; and

  4. the employee had made false accusations against management.

 

Disregarding the fact that it was irregular to charge the employee on the same facts as those in December 2011, the chairperson at the disciplinary hearing (who had also chaired the previous hearing) found the employee guilty of the first two charges and she was summarily dismissed. The insubordination charges also pertained to the same facts forming the subject matter of the First Final Warning, save for the additional allegation that the employee had abused company resources by sending her curriculum vitae to potential future employers using the employer’s computers. This resulted in another final written warning being issued (“Second Final Written Warning”). The employee was found not guilty of the fourth charge.

 

Court’s evaluation

The employee alleged that her dismissal and Second Final Written Warning were unfair and referred both matters to the CCMA. The Commissioner arbitrated two disputes: an unfair labour practice dispute regarding the First Final Written Warning and an unfair dismissal dispute (there appeared to be an oversight in the CCMA addressing the Second Final Written Warning).

 

The Commissioner found that the First Final Written Warning constituted an unfair labour practice and the warning was set aside.  Similarly, the employee’s dismissal was found to have been substantively unfair.

 

Section 193(2) of the Labour Relation Act 66 of 1995 (“LRA“) provides that an arbitrator or court must reinstate or re-employ an employee if the employee’s dismissal is substantively unfair unless any of the exceptions in section 193(2) of the LRA are applicable. Section 193(2) provides as follows:

 

“2) The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless:

  • the employee does not wish to be reinstated or re-employed;

  • the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

  • it is not reasonably practicable for the employer to reinstate or re-employ the employee;

  • the dismissal is unfair only because the employer did not follow a fair procedure.”

(Emphasis added)

 

The Commissioner held that the employer-employee relationship had broken down to such an extent that reinstatement would not be appropriate. The employee was awarded three months’ salary as compensation.

 

The employer unsuccessfully took the matter on review to the Labour Court which substituted the award with an order that the employee be reinstated and be compensated 24 months’ salary. The employer thereafter appealed to the LAC.

 

The LAC held that section 193(1)(a) and (b) of the LRA dictates that if a dismissal is found to be substantively unfair, the employee is entitled to reinstatement or re-employment. Only extraordinary reasons will justify a deviation and would only be allowed as contemplated in section 193(2). The LAC referred to the case of Edwin Maepe v CCMA and Another 2008 8 BLLR 723 LAC where the Court held that it was impractical to reinstate the employee due to the fact that he had given false testimony under oath. The LAC also referred to the case of Glencore Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others 2018 1 BLLR 1 (LAC) (“Glencore“) where the Court held that no matter how abominable an employee’s behaviour, it cannot automatically deny the employee an award of reinstatement or re-employment (emphasis added). Whether the unacceptable behaviour occurred pre- or post-dismissal was irrelevant (emphasis added). In Glencore the employee did not perform a “functional role” and did not have a direct relationship with his superiors. There was thus “no real obstacle in the continued employment of the employee“. It was therefore noted that the degree of relationship between the employee and his / her superior should be considered.

 

Taking the above into consideration, the LAC held that because the employee fell directly under the supervision of her manager, with whom she had to interact on a daily basis and from whom she had to take instruction and report to on a daily basis, a continued working relationship would be impractical.

 

The Court held that the break down in the trust relationship was evident in the employee’s clear disregard for her manager. This was evident from the testimony the manager gave regarding the employee’s conduct at work. Further, the employee’s own union representative stated to the chairperson of the disciplinary hearing that no relationship exists between the employee and management. The type of relationship required in this position was one in which the employee would need to work closely with her superior. In the absence of such relationship, reinstatement would be inappropriate. This was compounded by the short duration of the employee’s term with the employer.

 

The LAC therefore, agreed with the CCMA that reinstatement was inappropriate.

 

Importance of the case

Employees’ conduct towards an employer both before and after their dismissal may, in appropriate circumstances, bar such employee from reinstatement even if their dismissal is found to be substantively unfair.

 

For more information, please contact Jacques Van Wyk at  or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com

 

 

 

 

 

 

 

 

False allegations of racism may be grounds for dismissal

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate and Chelsea Roux, Candidate Attorney

 

Issue

Whether an employee who makes a false allegation of racism against another employee can be dismissed?

 

Summary

Employees can be dismissed for making false accusations of racism.

 

Facts

In the recent case of National Union of Metalworkers of South Africa obo Baloyi and Others v O-Line (Pty) Ltd (2019) 28 CCMA the Commission for Conciliation, Arbitration and Mediation (“CCMA”) had to determine the above issue.

 

The facts of the matter are briefly as follows. Gift Baloyi, Laurens Ndlovu, Jabulani Mabunda and Frans Ndlovu (collectively, “the employees“) were employed at O-Line (Pty) Ltd (“O-Line“). They were caught playing cards outside of O-Line’s premises during their tea break.

 

The Chief Executive Officer (“CEO“) of O-Line, Mr Smart, drove past the employees in his vehicle and reprimanded them for playing cards outside of the premises. The employees allege that Mr Smart swore at them, called them idiots and made a racial comment.

 

The employees attempted to meet with the CEO to discuss the incident.

 

Aggrieved by his conduct, the employees reported the incident to their shop steward at the National Union of Metalworkers of South Africa (“NUMSA“) who advised that they complete a grievance form to report the CEO’s conduct.

 

The grievance, which pertained to the allegation that the CEO made a racist comment, was completed but the NUMSA official never submitted it to the employer.

 

The employees were called to a disciplinary hearing on 17 October 2018 for their misconduct relating to the card game. The employees were found guilty of insubordination and issued with a final written warning.

 

On the morning of the disciplinary hearing, the NUMSA official told the employees that he “forgot” to submit the grievance form and that they should submit it that same day. O-Line did not believe the substance of the grievance.

 

A second disciplinary hearing was held during which the employees were charged with deliberately supplying incorrect and/or falsified information regarding the CEO’s statements to the employees. This resulted in the employees’ dismissal.

 

CCMA

The employees referred a dispute to the CCMA for arbitration.

 

They alleged that the CEO had uttered a racial comment, swore at them and called them “idiots”. They also alleged that some of these comments were made in Afrikaans.

 

O-Line presented evidence that these accusations had to be false because the CEO denied saying them. In addition O-Line argued that the CEO was English speaking and did not understand Afrikaans. They submitted that it was unlikely that he would make comments in a language that he does not understand. The commissioner had asked the CEO to read some of the comments he was accused of out loud. He did so with much difficulty.

 

Commissioner’s decision

The commissioner questioned why the employees had only brought the grievances on the same day as their disciplinary hearing. He held that it was highly probable that the NUMSA officials had advised the employees that if no disciplinary action was taken, no racial allegations should be made. They were in essence aiming to rely on the racial allegations as a defence to the disciplinary hearing. The commissioner also stated that NUMSA officials are well aware of the different avenues available for relief in such circumstances, none of which were utilised by NUMSA or the employees.

 

The commissioner held further that on a balance of probabilities, the employees were guilty of making false allegations.

 

When considering whether dismissal was justified, the commissioner looked at the gravity of the charges against them. He held that an accusation of racism in today’s society could cause irreparable reputational damage as well as end the CEO’s career at the employer. The employees showed no remorse for their conduct and as such, their dismissals were both substantively and procedurally fair.

 

Importance of the case

The making of unsubstantiated allegations of racism against another in the workplace amounts to serious misconduct and may lead to dismissal.

 

For more information, please contact Jacques Van Wyk at  or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com

 

 

 

 

 

 

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