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IVAN ISRAELSTAM - CEO OF LLMC

Over 25 years in the labour law field
Four years experience as CCMA commissioner
Author of two labour law books
Labour law columnist in premier publications
In demand as speaker at conferences, seminars and on electronic media

DERELICTION OF DUTY CHARGES MUST BE PROVEN

BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: This email address is being protected from spambots. You need JavaScript enabled to view it. . Go to www.labourlawadvice.co.za

 

Dereliction of duty cannot be used as the charge in every case where employees have performed their work poorly or failed to carry out instructions. Such problems can very often result, not from intentional or conscious decisions, but from lack of skill, faulty equipment, misunderstanding of the instruction, over zealousness or other less sinister reasons. Regardless of how seriously the latter list of causes might be viewed they do not constitute dereliction of duty because they lack the element of intent or consciousness.

Furthermore, even where an employer truly believes that the employee’s failure to perform is intentional, the employer still has the onus of proving this contention. In the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) Joseph was dismissed for breaching the rule that there must be at least two officials present when money was being prepared for collection. The CCMA commissioner found that Joseph had in fact broken this rule and was guilty of dereliction of duty. However, as the manager concerned had charged the employee out of “spite” rather than out of concern for the security of the bank, the arbitrator found that the dismissal was unfair. The employer was therefore required to pay the employee 12 months’ remuneration in compensation.

The main danger is that dereliction of duty is too often used as overkill when a charge of ordinary poor performance or negligence would do. However, the opposite mistake is also made. This is where the employee’s poor performance is permeated with willful failure to do his/her duty with serious consequences but the employer disciplines the employee for mere poor performance and gives him/her a warning. This gives the employee the wrong message that what he did was not serious. It also may set a precedent for other employees who might ‘get away with murder’ because the first case set too low standards on which performance is measured.

In the light of the above dangers employers are advised to use experts in labour law to:

  • Draw up their workplace rules and standards of performance
  • Train management in implementing discipline and control
  • Analyze suspected infringements in order to choose the legally appropriate wording for the charges against errant employees

 

NEW CHANGES AND DANGERS IN LABOUR LAW in Cape Town (9 March), Durban (15 March) and JHB (20 April) please contact Ronni via (011) 782-3066, 0845217492 or This email address is being protected from spambots. You need JavaScript enabled to view it. .