Schedule 8 of the Labour Relations Act (LRA) says that dismissal is only appropriate for those serious offences that make “a continued employment relationship intolerable”. Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
- Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
- The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a backroom clerk.
- Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.
In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.
In the case of Edcon Ltd v Pillemer NO & others (2010, 1 BLLR 1) decided by the Supreme Court of Appeal the employee was given the use of a company car on condition that, if she were involved in an accident, she would report it to the company and the police. The employee allowed her son to drive the vehicle, and he was involved in an accident. The employee decided not to report the matter and instead, had the car repaired. Later, when the employee took the car for a service, collision damage was detected, and the employee asked that it be repaired. When confronted by her employer, the employee initially denied that the car had been involved in a collision, but then claimed that she had been rammed by a taxi.
The employee changed her version twice, first claiming that she was with her son when the accident occurred, then claiming that she was alone in the vehicle at the time. After a disciplinary inquiry, the employee was found guilty of failing “to be honest and act with integrity” by not reporting the accident. She was dismissed. The CCMA commissioner considered whether the employee’s decision to hide the fact of the damage and her lies had breached the trust relationship. The commissioner took into account correspondence by two managers, who both said they still trusted the employee. The commissioner, therefore, found that the company had failed to prove that the trust relationship had been breached, and ordered the appellant to reinstate the employee without retrospective effect.
The Supreme Court noted that the company’s only witness did not testify on the effect of the employee’s conduct on the trust relationship. There had been no evidence before the commissioner from which the effect of the employee’s dishonesty on the company’s operational needs could be gauged. Not only was the commissioner obliged to find that there was no evidence to conclude that the trust relationship had been destroyed, but she had also correctly taken into account the employee’s years of service and clean disciplinary record.
The appeal was dismissed.
In the case of Abdullah vs Kouga Municipality (2013, 5 BALR 437) the applicant was suspended from his position as CFO of the respondent municipality. He successfully launched an urgent application in the Labour Court for an order setting aside his suspension. However, when he reported for duty, he was told that the respondent’s council had decided to terminate his fixed-term contract some five months prematurely and that all charges against him had been withdrawn. The reason given was that the respondent had lost trust in its current senior management.
The Labour Court declared his dismissal unlawful and ordered the respondent to pay the applicant the salary he would have earned had the contract run its course. Reinstatement was refused because it was found to be common cause that the employment relationship had been destroyed.
After the Labour Court’s judgment was handed down, the applicant referred a dispute concerning an unfair dismissal under the LRA.
The Commissioner found that the applicant’s dismissal was patently unfair. It occurred after the employer had withdrawn all charges against the applicant, and the applicant had been afforded no hearing. He was granted compensation over and above the amount ordered by the Labour Court.
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