Employers: Dismissals can be incompatible with the law

by angelique | Oct 26, 2020 | Employers

Employees who are seen as trouble makers, eccentrics, disruptive, disagreeable, pushy, non-compliant, independent or who merely refuse to ‘suck up’ to the boss often find themselves on the wrong side of the exit door. 

In the absence of statutory guidance, case after case has confirmed the old principle that the employer is entitled to require harmonious working relationships in the organisation. This principle was developed in the 1987 case of Erasmus vs BB Bread Ltd (8, ILJ 537). This laid the basis for employers to act against employees whose conduct is incompatible with workplace harmony. In view of this it appears, at first sight, somewhat surprising that so many employers have come off second best after dismissing employees for incompatibility.

One of the earliest employers to fall foul of the Court’s views on this subject was St Mary’s Hospital (Wright vs St Mary’s Hospital, 1992, 13 ILJ 987). In that case the employee was dismissed for incompatibility after undermining authority, incitement and losing his temper. However, the Court held that dismissal for incompatibility would only be fair if the employee’s conduct resulted in an irretrievable breakdown in the relevant relationships. The employer is required to endeavour to seek ways of reversing the incompatibility. If the employee is believed to be the cause of the problem he/she has the right to be given a chance to resolve it.

As the Court was not satisfied that these principles had been met it ordered the employer to reinstate the employee. As I mentioned in a recent article such a reinstatement strengthens the hand of an undesirable employee and makes further action against him/her extremely difficult.

It is folly for employers to use some other pretext in order to get rid of employees with whom they are incompatible. In Nathan vs The Reclamation Group (Pty) Ltd (2002, 23 ILJ 588) a new Operations Director, on joining the company, stripped Nathan, the existing director, of his powers, humiliated him and downgraded him. The employee was later dismissed on charges of poor work performance. However, the CCMA found that the apparent poor performance of the dismissed director had been fabricated by the Operations Director and that the real reason for this dismissal was incompatibility between the two of them. The arbitrator therefore found the dismissal to have been unfair.

Another case in point is Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk [2020] 6 BLLR 549 (LAC). After the respondent employee, a general manager, fell out with another senior manager the employer took steps to remedy the conflict by merging the posts of the two employees. After the respondent’s attorney objected to the process, the employer retrenched the applicant employee. 

The Court noted that fairness in such cases requires the employer to inform the employee of the conduct that causes the disharmony, to identify the relationship affected, to propose remedial action and to give the employee a reasonable opportunity to remedy the situation. The appellant had in fact initially approached the problem as an incompatibility issue by attempting to mediate. However management then restructured the division and declare one post redundant. Having taken this step, the appellant was obliged to engage in joint consensus-seeking consultation, which it had not done. The dismissal was accordingly unfair. The employer was ordered to pay the employee R932 321 in compensation and to pay her legal costs.

In the case of Glass vs Liberty Group Ltd (2007, 12 BALR 1172) a senior employee was dismissed for incapacity. The CCMA found that the employee had disrupted the harmony of the workplace and that this justified her dismissal as the employee had been counselled but had refused to co-operate with remedial measures.

The above decisions teach employers that, should they believe incompatibility to be a problem in the organisation they need to:

• Investigate objectively and gather the facts.
• Avoid ignoring the incompatibility problem and fabricating some other pretext for dismissal
• Keep an open mind. If the investigation shows that incompatibility is not the problem or that it is not the fault of the employee being investigated the employer must deal with the true problem uncovered.
• Make a clear and genuine effort to reverse the incompatibility. 

Where dismissal becomes a real option first:

• gather true facts to prove that the incompatibility is the employee’s fault, prove that genuine and concerted efforts to rectify the problem have failed and prove that the incompatibility has irretrievably damaged the working relationship
• use the best labour law expertise available to make sure that the employer has followed all the necessary steps correctly and that dismissal is truly the right option.

To attend our 24 November 2020 webinar on RETRENCHMENT AND THE COVID ENVIRONMENT please contact Ronni via [email protected] or on 0845217492.

Employers: DISMISSING SHOP STEWARDS IS NOT EASY

by angelique | Oct 19, 2020 | Employers

The term ‘shop steward’ is a colloquial one and refers to the employee elected as the workplace representative by fellow employees who belong to the relevant trade union.  The Labour Relations Act (LRA) officially refers to shop stewards as “trade union representatives”. Section 14 of the LRA gives these representatives (shop stewards) a number of special rights such as the right to:

• Assist employees in disciplinary and grievance hearings.
• Monitor and report any of the employer’s contraventions of the law to the appropriate authorities.
• Take reasonable time off with pay during working hours in order to perform these duties.

Where an employee who is acting in his/her capacity as a shop steward behaves in an objectionable manner he/she cannot be treated simply as an employee. The courts have found, for example that where a shop steward who is engaged in negotiations on behalf of union members tells management that they are crazy, this would be seen not as an employee being insubordinate or insulting to management but rather as one negotiator speaking to another on an equal level. Therefore, the shop steward could not be disciplined for misconduct due to this incident. Such discipline could be seen as unfair and could, in addition, breach the provisions of sections 5 and/or 187 of the LRA if they are found to constitute victimisation of the employee due to his/her union activities.

However, being a shop steward does not give the employee the right to behave how ever he/she likes whenever he/she likes. While he/she is not acting in his/her shop steward capacity he/she can be treated just like any employee. Furthermore, even where the shop steward is carrying out union activities he/she is still obliged to do so honestly and within the law. Thus, where a shop steward, during a legitimate strike, starts destroying property he cannot simply hide behind his shop steward mantle in order to avoid discipline or criminal prosecution.

Thus, managers do have the right to discipline shop stewards but this must be done for fair reasons and in a fair manner. Ignoring the legal procedures is extremely dangerous when disciplining any employee, but to do so in the case of a shop steward can cause irreparable damage.

Item 4(2) of the LRA’s Code Of Good Practice: Dismissal states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union. These consultations should be aimed at seeking ways of resolving the problem without resorting to discipline. The purpose of this provision is to allow the parties to find a solution that will reduce the likelihood of industrial unrest provoked by the dismissal of a shop steward. 

However, while employers are required to enter into such pre-dismissal consultations in good faith, this does not mean that the employer is required to accept the trade union’s proposals for avoiding the discipline of the shop steward. That is, where the parties have thoroughly explored the alternatives in vain, the employer may then go ahead and institute disciplinary steps.

In the case of NUMSA obo Blose vs Trellidoor (Pty) Ltd (2007, 4 BALR 324) a senior shop steward was given a final written warning for encouraging a fellow employee to lie about that employee’s relationship to a casual employee who was her brother and for falsely accusing a manager of nepotism. However, based on the evidence presented, the arbitrator said that the shop steward was fortunate not to have been dismissed. The arbitrator was in effect confirming that, where an employee commits gross misconduct it can be fair to dismiss him/her regardless of whether he/she is a shop steward.

This raises the question as to what constitutes gross misconduct. This is conduct that is most serious due to its consequences or, in some cases,  potential consequences. It is due to this that theft, extended unjustified absence, serious dereliction of duty insubordination or assault can constitute gross misconduct.

In the case of MEWUSA obo Ndaba vs Boiler Cleaning Services (2008, 1 BALR 5) the shop steward was dismissed for assaulting a colleague in a moving vehicle and breaking a window of the vehicle. The arbitrator found that this amounted to gross misconduct especially since assaulting someone in a moving vehicle was extremely dangerous. The dismissal was therefore substantively fair. 

It is thus clear that, while the law sees shop stewards in a different light to other employees, the title of shop steward does not automatically act as a suit of armour against the sword of justice and discipline. 

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.

Employers: You could be stuck with re-instated employees

by angelique | Oct 12, 2020 | Employers

When it has been found that an employee has been unfairly dismissed the Labour Relations Act (LRA) requires arbitrators and judges to use reinstatement as the remedy of first resort That is, forcing the employer to take the employee back (often with full back pay) must be considered ahead of any other remedy. Unfair dismissal refers to firings for misconduct or poor performance, incapacity dismissals, discriminatory dismissals, constructive dismissals, retrenchments or any other unfair termination of the employment by the employer.

The requirement for reinstatement to be implemented is limited where:

• The dismissal was only procedurally unfair
• The employee prefers not to be reinstated
• Reinstatement would be intolerable or impractical

Reinstatement means that the employee must be returned to the same job on the same terms and conditions as existed before the dismissal unless the terms and conditions of the job have improved since then. If the arbitrator or judge intends the reinstatement to be fully retrospective he/she is required to make this clear in the award/judgement. This would then mean that:

• the employer would have to pay the employee all remuneration and benefits accrued between the date of dismissal and the date of reinstatement
• the employee’s status is as if there was never a termination of employment.

Where the CCMA or court decides that the employee is to return to work but not in the same job as before it may order re-employment instead of reinstatement as long as the new job contains suitable work. 

When the employee is reinstated it will be either to his/her job with the employer who dismissed him/her or to a new employer that has taken over the old employer’s business (or part thereof) as a going concern. 

There is nothing specific in law that gives the reinstated employee a higher status merely by virtue of his/her being a reinstated employee. That is, the employee’s status does not automatically increase over that of his/her colleagues or over the status existing prior to the dismissal merely because of the reinstatement order.

However, psychologically the reinstated employee may well have grown in status. This is because:

• His/her colleagues may see him/her as a ‘hero’ for having stood up to the employer or for having ‘beaten the system’.
• Management may be too scared to discipline him/her or to take any other controlling type action for fear of losing another court case. This could be expensive, time consuming and humiliating in the eyes of the workforce.
• Section 5 of the LRA prohibits the employer from victimising the employee in any way for reasons related to the employee having previously exercised his/her labour law rights against the employer. Therefore, any time the employer takes action against the reinstated employee he/she could claim that this was an unfair retaliation for the employee having taken the employer to the CCMA, Labour Court or bargaining council.

It must be stressed that the above concerns do not prevent the employer from disciplining, retrenching or otherwise dismissing a reinstated employee. However, it does mean that the employer would need to do so with the utmost care. This means that the employer must ensure that:

• The dismissal and/or other disciplinary procedures are followed to the letter of the law. That is, the procedures laid down by the LRA and in case law must be followed without the slightest deviation. 
• The proof that the reason for the discipline or dismissal was fair is 100% solid.

In order to achieve the above two most challenging tasks the employer may need to make use of far better labour law expertise than was utilised for the case in which the employee was reinstated. The alternative to following the this advice would be:

• either to give the reinstated employee free reign by avoiding any disciplinary or other action against him/her. However, this would allow the employee to control management which is an unthinkable alternative; or
• bungling the case the second time and ending up in the Labour Court for an automatically unfair dismissal based on victimisation. Where, for example, an employer has dismissed an employee in retaliation for having previously exercised his/her legal rights the court can award retrospective reinstatement or compensation of up to 24 months remuneration.

BY   Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za

EMPLOYERS: YOUR DISCIPLINARY CODE KEEPS YOU ON THE RIGHT ROAD

by angelique | Oct 5, 2020 | Employers

Labour legislation requires of employers to ensure that their “…standards of conduct are clear and made available to employees in a manner that is easily understood.” Therefore, two of the many things that an employer may be required to prove when it is dragged to the CCMA are that:

•  the rule that the employee is alleged to have broken existed at the time of the alleged offence
• the dismissed employee knew he/she was breaking the rule when he/she committed the misconduct.

In the case of Moolman vs Nu Vision Aluminium (Pty) Ltd (2008, 9 BALR 805) the employer discovered that the employee was doing private work outside working hours and instructed him to resign and to go home. The arbitrator found:

• the instruction given to the employee amounted to a dismissal
• the employee had not been made aware of any rule prohibiting the carrying out of private work in his own time
• the dismissal was unfair.

This makes it clear that:

• Every company, partnership, sole trader, organisation needs to draw up its own Disciplinary Code
• Induct every employee as to its Disciplinary Code
• Keep proof that the above has been done so that, if a dismissed employee claims at the CCMA that he did not know the rules, the employer can prove that this is an invalid excuse.

A Disciplinary Code is an internal document devised by the employer in which the rules of conduct are spelt out and in which the suggested penalties for breaking these rules are listed. As required by Schedule 8 of the LRA, these penalties need to be appropriate in the light of the seriousness of the offence. 

When designing and implementing your Disciplinary Code remember:

• The offences need to be clearly described
• The rules need to be reasonable and fair
• They need to be realistic so that it is possible for employees to follow them
• You should try to include all those rules which pertain specifically to your company/organisation
• To communicate the code to all your employees in a way they understand
• You should explain the reason for rules which employees could have trouble in understanding. For example, you may prohibit your employees’ from receiving visitors at work. If your reason is that visits interrupt work or that security could be compromised you should explain this
• To try to get buy-in for the rules from your workforce by consulting them. That is, you should draw up draft rules and then ask your employees for their views. You should not make the final decision on the rules before consulting your employees.
• Ensure that, if you deviate from your disciplinary code, you have a solid and legally acceptable reason for the deviation. In the case of Magagula vs Department of Health (2004, 2 BALR 156) the employee was suspended without pay for three months for accepting a bribe. He referred a dispute to the Public Service Bargaining Council where the suspension was found to be procedurally unfair. This was despite the fact that the employer’s disciplinary code provided for dismissal (a stronger sanction than suspension) of employees taking bribes. The arbitrator based his/her award on the fact that the employer’s code only allowed suspension without pay to be implemented with the employee’s permission. Such permission had not been obtained and the employer offered no acceptable reason for this deviation from the code. The employee was therefore awarded compensation.

In view of the dangers involved in designing faulty disciplinary codes and in the implementation thereof it is crucial that all employers assign a labour law and industrial relations expert to:

• Check their Disciplinary Code for legal defects
• Add in rules that are missing
• Train their management in the interpretation and application of the code.

To observe our experts debating hot labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate item in the main menu.