Making dismissal stick requires legal know how

We too often hear the shout from business owners and managers: “Get rid of him now; we’ll worry about the law later!” Little do they realise that ‘the costs’ they are shouting about could be immense. This is especially so if the persons charged with the job of getting rid of the offender do not have the necessary labour law knowledge and skills. Expertise is required in a number of areas including:

• Assessing whether what the employee is accused of actually constitutes an offence

• Ensuring that the employee gets a fair opportunity to answer to the charges

• Arriving at a fair verdict based on the facts presented

• Ensuring that the penalty is a fair one

• Preparing a watertight case to take to the CCMA or bargaining council to persuade the arbitrator that the employee deserved to be dismissed

• Presenting a persuasive case at arbitration.

None of the above tasks is easy and failure with them can prove extremely costly. For example, in the case of Fidelity Cash Management Service vs CCMA and others (2008, 3 BLLR 197) the employee was dismissed for gross negligence, dereliction of duty for failing to arrange a back-up vehicles, refusing to take a polygraph test and for twice appearing late for his disciplinary hearing. It was alleged that the employee’s failure to arrange the back-up vehicles indirectly resulted in the robbery of one million rand.

The CCMA arbitrator found that the employee was not guilty of the charges brought against him and ordered the employer to reinstate the employee with retrospective effect. The employer took this decision on review but the Labour Court upheld the arbitrator’s award. The employer then went on appeal to the Labour Appeal Court. The employer said that the employee had been in the wrong as he was absent from the control room for a period on the day of the robbery. However, the Court disqualified this allegation as it had not been included in the charges laid against the employee at his disciplinary hearing.

The Court further found that:

• The employee had been told that he did not have to undergo the polygraph test and that it was therefore not fair to dismiss him for refusing to take it.

• The employee had the right to arrive late for his disciplinary hearing because it was his choice to waive his right to defend his case.

• It had not been part of the employee’s duties to arrange back–up vehicles; so he could not be punished for failing to do so.

• The CCMA arbitrator’s decision to reinstate the employee was reasonable and that the Labour Court had been correct in deciding not to overturn it.

• The employer’s appeal was therefore dismissed.

In this case the persons acting for the employer failed to convince the Court that:

• The employee’s absence from the control room was part and parcel of the charge of dereliction of duty

• The employee’s refusal to take the polygraph test was not so much a charge as an indicator that he had something to hide and therefore added to his guilt in respect of other charges

• The employee’s late arrival on two occasions at his disciplinary hearing caused a delay of the hearing and therefore constituted misconduct

• Despite it not being in the employee’s job description it had become the employee’s normal duty to arrange back-up vehicles

• The CCMA’s award was unreasonable.

It cannot be said unequivocally that the blame for the employer’s loss of the appeal should be placed partly or completely at the door of those who presented the employer’s case at the CCMA and in court. Case presenters can only work with what they are given and cannot change the facts of the case. It appears that the root of the problem could have stemmed at least partly from the preparation for the disciplinary hearing. The cost to the employer in this case included the expense of the hearings at CCMA, Labour Court and Labour Appeal Court as well as the cost of the back pay required by the reinstatement order.

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