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An employee, while wearing the employer’s uniform bearing the employer’s name assaulted a cashier at a busy supermarket. The employee was fired for bringing the employers name into disrepute. At the CCMA the HR Manager, who was the sole witness for the employer, admitted that, after the assault, nobody had accused the employer of hiring criminals, provoking the assault, being involved in the assault, condoning the assault or of being ‘bad’ in any other way.
In his closing the employee admitted that he had committed the assault but argued that the employer had failed to present any evidence that the employer’s name had been brought into disrepute.
In view of the above, should the arbitrator uphold the fairness of the dismissal? Please provide reasons for your opinion.In essence an assault in all circumstances warrants a dismissal. It does appear that they have “charged” the employee at the disciplinary hearing with the least liability. Bringing an employers name in to disrepute does require at least some proof and there doesn’t seem to be much here at all. However, if this assault took place in front of customers this would be vastly different. The HR manager can show on a balance of probabilities that an assault in a supermarket which is normally busy does lead to disrepute and this does not need to be proved beyond all reasonable doubt. This is a civil and administrative action and only has to be proved on a balance of probabilities.
I agree with Michael’s assessment and conclusion.
Any form of misconduct which connects the perpetrator to his or her employer reflects on the image and reputation of that person’s employer. If the person is identified as an employee, he or she effectively represents the employer’s values and standards of conduct in his or her interactions with third parties – such as staff and customers in a supermarket. It follows that misconduct in public which would constitute misconduct in the workplace warrants disciplinary censure by the employer as if it happened in the workplace. And it could warrant dismissal if the misconduct was serious.
The principle applies equally to an employee who does something good in public which aligns with the employer’s values and standards of conduct – for example, if the person wearing the employer’s uniform spots a shoplifter and reports him to the manager, or assists a customer who suffers a heart attack in the store. The supermarket would praise the employee and think well of the employer by association.
It’s generally understood that personal and employer reputations can be harmed by negative actions and enhanced by positive actions. For this reason, it’s not necessary for the employer to “prove the disrepute”. Proof of the facts and context in which the act occurred provides the evidence.
• The duty not to bring an employer’s name into disrepute is a contractual duty, falling under the duty of good faith that an employee owes an employer which is an implicit term of the contract of employment.
• The uniform must clearly identify the employer linking the conduct to the employer.
• The employer must prove that the conduct of the employee (the assault) either actually harmed the employer’s reputation or could reasonably be expected to harm it.
• The facts speak for themselves in this case (the uniform clearly identified the employer and the assault took place in a public setting and therefore there is no need, I believe, for the employer to lead evidence that the assault actually harmed the employer’s reputation.
• The employee, therefore, is clearly guilty of bringing the employer’s reputation into disrepute.Whether they should be dismissed is another question and would depend on a number of factors: the seriousness of the assault, the number of supermarket customers who witnessed the assault and who were able to identify the employer from the uniform as well as the other usual aggravating and mitigating factors (length of service etc).
I disagree with the views of my debating team members. With respect to my colleagues, their view is based on the assumption that the people observing the employee’s assault saw it as an action committed by his employer or, for some other reason, saw the employer in a negative light. Remembering that the charge was not ‘Risking damage to the reputation of the employer’, but rather ‘Causing actual damage to the reputation of the employer’.
It is trite law that the employer has the onus of proving the employee guilty of the alleged offence. In practice, it is reasonably possible that none of the witnesses to the incident projected on to the employer any vacarious blame for the assault merely because the perpetrator appeared to be in its employ.
Reasonable, rational humans would not necessarily assume that the employer was bad merely because of something that its employee did. If it were true that observers would jump to such a conclusion then, every time it is reported in the media that an employee was charged for an offence, we as observers would assume that his employer was vicariously responsible, whether directly or indirectly. We do not do that because our rational minds are able to distinguish an employee from an employer. The test for this is a rational one based on the reasonable person principle. Viz. If you had observed the employee assaulting someone would you see his employer in a bad light?
In view of the above the employer in casu would have to bring at least one witness to the hearing to state that the employee’s conduct made him or her believe that he worked for a bad employer.Thank you to Anna Peal for her opinion. I still very much differ in that a disciplinary enquiry is not a formal court case and an employer is not bound by the actual bidding of the notification to appear at the disciplinary enquiry. The employer can send an addendum to that as it doesn’t require any further evidence of outline of the wrong doing. The wrong doing remains the same.
It would be important to also have a look at the Code of Good Practice in the business and in particular the disciplinary code.
If necessary they can even postpone the disciplinary enquiry. Assaulting a colleague almost every single reason would be good grounds to terminate the employment relationship.
Michael makes a very good point as regards the flexibility of an internal disciplinary hearing because the employer could thus have had some leeway as regards the wording of the charges.
However, I must point out that at the CCMA the arbitration hearing is a hearing de novo. As the CCMA arbitration hearing is a legal forum there is no flexibility as regards the wording of the charges and the proof of guilt. As such, I think the employer would have to bring at least one witness to the arbitration hearing to state that the employee’s conduct made him or her believe that the assailant worked for a bad employer.
Also, there is no information in the scenario indicating that the assailant who committed the offence was a colleague of the victim. I therefore see him as a shopper who assaulted the supermarket cashier.
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