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Dishonesty Remains Unacceptable

By Michael Maeso, Partner, Head of Employment & Pension Law, Shepstone & Wylie Attorneys

 

Mr A was employed as a manager and also trained the company's employees.  Mr A was dismissed for moonlighting, acting dishonestly by misrepresenting the time he spent on training and by forging signatures and submitting false information on other documents. 

 

Undeterred, Mr A referred a dispute to the CCMA where it was accepted that there was a rule against moonlighting at work and that the employee was aware of it.  The arbitrator found that Mr A submitted false attendance registers to an accredited training service and found him guilty of dishonesty and fraud.

 

When dealing with the issue of sanction, the arbitrator took into account that Mr A had previously been reinstated after the CCMA had found that he had been unfairly dismissed.  Having subsequently charged Mr A with misconduct after his reinstatement, the arbitrator concluded that "the company wanted him out" and that in different circumstances the company have dealt with the current misconduct differently.  The arbitrator concluded that the discipline smacked of "a witch hunt", found the sanction of dismissal inappropriate and awarded 3 months' compensation.

 

On review it was argued that having found that Mr A was aware of the rules against moonlighting, that A did not ask for permission to conduct the training which was for his own personal benefit and that he forged signatures on the training register and misrepresented the period of training, that these findings show that the award is so unreasonable that no reasonable arbitrator could have come to the same conclusion.

 

The Labour Court found that the arbitrator had clearly disregarded the fundamentals of the employment relationship and that the employer should be able to place trust in its employees.  Any breach of this trust goes to the heart of the employment relationship and is destructive of it.  The Labour Court also emphasised that when an employee continues to rely on a false defence, particularly where a high degree of trust is placed in an employee, the employer can legitimately say that the risk of continuing to employ the offender is unacceptably great.

 

The Labour Court agreed that the arbitrator's finding was contrary to the established principal that an employee owes the employer a duty of good faith and that the employee cannot place himself in a position where his interests are in conflict with that of the employer.

 

On the facts, the Labour Court concluded that it was "difficult to fathom" on what basis the arbitrator found that the company was conducting a witch hunt against Mr A.  The facts were that Mr A committed serious misconduct, including dishonesty and fraud and that the company led clear evidence that it had lost trust in him.  To find that dismissal in these circumstances was unfair was entirely unreasonable.  The award was set aside and substituted with an award confirming that the dismissal was fair.

 

For more information kindly contact Michael Maeso at

Article published with the kind courtesy of Shepstone & Wylie Attorneys for more information please visit http://www.wylie.co.za 

 

 

 

 

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