Desertion, Dismissal (Misconduct), Incapacity
Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 12 2025 [Copyright: Marius Scheepers/16.10.1])
** Desertion
prolonged absence might serve as evidence of desertion
Termination of employment only occurred when the employer subsequently accepted the repudiation of the employee
JR783/07
Khulani Fidelity Services Group v CCMA & Others
unlike ordinary absenteeism, desertion required an element of intention not to return to work
JS705/08
SATAWU obo Langa & Others v Zebediela Bricks (Pty) Ltd & Another
Termination of contract
amounts to breach of the contract of employment, but does not in itself bring the contract of employment to an end. Held: The breach of the contract does, in itself, not bring about a termination of the contract. [32] The termination requires an acceptance of the breach by the employer, which then amounts to a dismissal
J774/99
Lebowa Platinum Mines Ltd v CCMA & Others
s 17(5)(a)(ii) of the Public Service Act
employee, who was prohibited by his/her contract of employment from taking any
remunerative employment, took up other remunerative employment he/she had to be deemed to have resigned. Section 17(5) read with s 30(b) meant
exactly that. Instead of resignation it used the word discharged.
JA 71/10
Solidarity and Another v Dickens NO and Department of Health: Free State
whether the employee had furnished sufficient and reasonable justification for her extended absence.
JR 2679/10
Thubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others
Disciplinary code, can be dismissed after 5 days, also to be reversed after employee return, e dismissal was not final and did not close the door to the possibility of it being reversed on the employees return and his being able to rebut the inference of desertion by providing a satisfactory explanation for both his absence and his failure to inform his employer. The employee bore the onus of providing a satisfactory justification for his absence, this being a matter within the sole knowledge of the employee. In the circumstances of the present matter, where the employee had not provided any such justification, the dismissal was justified.
JR 182/11
Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others
charges
JR603/2015
Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017)
Police and Prisons Civil Rights Union v Minister of Correctional Services and Others [1999] 20 ILJ 2416 (LC) at 2425, par [33]
the charge sheet should contain factual information as to the nature of an allegation against the employee sufficient for an employee to know the case he is expected to meet.
wanted to take leave as his son was due to attend a circumcision school…that he had reported his absence to a fellow employee, and had during his sick leave, went home. He had conceded that his initial request to take leave was declined. During his last shift at work he fell ill…the dismissal of Mr Sonnyboy Manyoni was fair
[30] I align myself with the views expressed above and agree that in circumstances where an employer in terms of its own disciplinary code/policy and procedure is permitted to deem an employee to have deserted after a certain period of unexplained absence, there is no requirement for that employer to establish an intention to desert on the part of the employee. Upon the employees return and an appeal process granted in terms of the policy, the onus is on the employee to provide satisfactory justification for the absence.
[31] The issue of whether there was an obligation on Glencore to make attempts to contact Manyoni seems to have persuaded the Commissioner in finding that the dismissal was substantively unfair. This was notwithstanding the fact that in terms of clause 4.4.3 of the Policy, the onus was upon Manyoni to justify his prolonged absence. I appreciate that in Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45], the approach, albeit expressed obiter, seems to suggest that there is an obligation on an employer to provide some evidence that an absentee employee was contacted. That approach was long stated in South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13], where it was held that an employer who has the means of communicating with the absent employee must do so. It is my view that even if there is such a requirement or obligation on the employer, it does not absolve that employee from his/her obligations to contact the employer, especially where the company’s policy explicitly so requires.
Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45
Although one might be tempted to conclude that, by virtue of having undertaken a scholarship to the UK, the applicant would, in all likelihood, have found it impractical to return to resume his employment if he were recalled, I find such a conclusion to be unfounded and speculative in the absence of any evidence that he was called to take up his duties and failed to do so. Moreover, the NPA knew where the applicant was at all relevant times as it was communicating with him via email. It made a conscious decision not to recall but to discharge him. This fact leads me inexorably to conclude that the finding by both the Labour Court and the Labour Appeal Court in this regard is wrong.
[17] At para 15, where it was stated that;
Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.
South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13
It is not desertion when an employee who is absent from work intends returning to work. Desertion necessarily entails the employees intention no longer to return to work. The employer would have to establish this intention in a fair process. Para 15…Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.
[32] Thus, where desertion is regulated by the employers disciplinary code as in this case, or some other statute, the principles set out in Grootboom v National Prosecuting Authority and Another[18] by this Court in my view ought to find application, and the employee must show good cause by providing a reasonable and satisfactory explanation for his or her absence without authority, irrespective of whether the employer is required to attempt communication with that employee during his or her absence or not. The employer in considering whether or not good cause has been shown must in addition, take into account considerations of fairness and justice, and further consider whether or not the unauthorized absence was wilful on the part of the employee.
** Dismissal
Misconduct
not reporting overpayment
if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable
C429/01
Consol Ltd t/a Consol Glass v Ker NO & Others
Misconduct
Dishonesty
Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently
had not tried to conceal facts from the employer, as alleged, and that they had therefore not been dishonest
DA4/01
Nedcor Bank Ltd v Frank & Others
misconduct*
derivative misconduct
association wit culprits
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Misconduct
Assault
CA13/98
County fair foods
Incapacity
JA 69/98
EC Lenning Ltd
Misconduct
Fraudulent scheme
DA24/98
Reddy
Misconduct
Fraud
DA2/99
Toyota
Misconduct
Absent vs no leave form
JA58/99
Karbochem Sasolburg
Misconduct
No issue warning
Insubordination; employer may require employee to perform whatever work is required of him provided that such work falls within the scope of his ability
PA6/99
Waverley Blankets
Misconduct
Nature of warning
PA6/99
Waverley Blankets
Misconduct
Falsifying overtime claim
Trust relationship had not broken down; Long service; Remorse; Appeal dismissed
JA 68/99
De Beers Consolidated V CCMA
Misconduct
Falsifying overtime claim
Trust relationship had not broken down (Anglo American farms t/a Boschendal Restaurants vs Komjwayo (1992) 13 ILJ 573 (LAC))
JA 68/99
De Beers Consolidated V CCMA
Misconduct
desertion
Consistency
CA9/99
Cape Town City Council Masitho
Misconduct
Theft of 16 meatballs
Theft or attempted theft equally serious; dismissal due to dishonesty
JA34/00
Rustenburg Platinum Mines v NUM
Misconduct
Stabbing person outside place of employment; effect of the misconduct on the employment relationship
J5079/00
Foschini Group v CCMA
Misconduct
Protected strike
Blocking employer’s premises; serious misconduct (Imperial Car rental v TGWU LAC NH11/2/22/436); Fair
J2211/99
PPWAWU v Metrofile
Dismissal of Chief Executive Officer
the employer is entitled to set its own performance standards for a senior employee and to assess whether those standards have been met, and that a court will not intervene unless the standards or the assessment are grossly unreasonable
JA80/99
Brereton v Bateman Industrial Corporation Ltd & Others
Racial remark
calling of, or, the reference to, an African person in South Africa as a Kaffir by a person who is not an African is part of the racial abuse
PA1/01
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others
Misconduct
Currying and firing firearm
Sanction: Held further that the Commissioner had committed a reviewable irregularity in interfering with the sanction imposed by the employer. Held: It is settled law that generally an employer’s sanction should not be interfered with except only in circumstances where the sanction is so excessive as to shock ones sense of fairness or in circumstances where sanction (sic) is totally unreasonable and unfair
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
Misconduct
Sanction
other case law sited: De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC)
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
Misconduct
Sanction
other case law sited: County Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ 1701 (LAC)
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
attempted to remove company goods (a portion of a roll of toilet paper)
charged of misappropriation of property
should have been charged with theft, if theft was to be relied on by the
P758/00
NUMSA obo Ngele v Delta Motor Corporation & Others
Misconduct
fraud; submitting a claim for overtime which he had not worked
Fraud is a dismissible offence and dismissal is the appropriate sanction in keeping with the trite principles of Labour Law
JR288/01
SA Post Office Ltd v Mooi NO & Others
alcohol
reading twice that permitted by the employer eight hours after he had commenced his shift and that this in itself was a dismissible offence
J4616/99
St Helena Gold Mines Ltd v CCMA & Others
assault
Disciplinary Procedure
final written warning; Two days later senior management altered the sanction to one of dismissal; employers disciplinary code made no provision for intervention or the overruling of such determination and that this was the first time it had intervened in such a manner
CA12/01
County Fair Foods (Pty) Ltd v CCMA & Others
Misconduct
Procedure
double jeopardy: delayed for three months before instituting a disciplinary hearing; already acquitted the employee of the offence at an earlier hearing; relied on a balance of probabilities when finding the employee guilty of the offence
JR716/01
Duiker Mining Ltd (Tavistock Colliery) v CCMA & Others
Misconduct
dishonesty and misrepresentation: qualifications
not consistently applied discipline in that other offenders had merely been instructed to remove their bars without being charged with misconduct, let alone dismissed.
D1152/01
McCord Hospital v Sithole & Another
Incapacity vs Misconduct
was not that the [employee] did not perform in the context of her appointment neglected to do so or did not do so to the best of her ability. Those would have been disciplinary issues, inviting a different form of reaction by the employer. The issue was one of incapacity, and inability on the part of the [employee] to achieve the reasonable standards of performance set for her by the [employer] notwithstanding what presents as a generous opportunity over an extended period to do so. That she could not achieve those standards in the end result became justifiably an untenable situation as far as the [employer] was concerned (at [4] – [23], referring inter alia to Sun Couriers (Pty) Ltd v CCMA & others (2002) 23 ILJ 189 (LC),
C471/01
Danzas AEI (SA) (Pty) Ltd v Wanza NO & Others
Misconduct
disciplined for taking a quarter loaf of bread when he was not allegedly entitled to
the employer had not discharged its onus to show that the dismissal was fair because it had not shown that the employee was not authorised to take the bread could not be faulted
D1366/02 and D1367/02
Cambridge Meat v Mhlongo & Others
Insubordination
Obedience and loyalty on the part of an employee constitute the core and nucleus of a successful and sustainable working relationship between employer and employee. Flagrant defiance by an employee of a reasonable and lawful instruction given by a competent authority of the employer, within the ambit and scope of the employees employment, is therefore both abhorrible (sic) and untenable.
that no evidence had been led before the Commissioner to show that the employment relationship had irretrievably broken down. Held that the sanction of dismissal imposed by the Commissioner was not rationally justifiable
J3721/00
NUM & Another v CCMA & Others
Code
the fact that a penalty was competent does not mean that the suggested penalty is mandatory and that the code should (only) serve as a guideline
J3721/00
NUM & Another v CCMA & Others
Misconduct
absenteeism
parity of treatment
C1055/01
SRV Mill Services (Pty) Ltd v CCMA & Others
parity principle
that inconsistent application of discipline may lead to perceptions of unfair treatment and that an employer may therefore be required to justify differential treatment of employees in order to avoid a finding that there was in fact unfair treatment
C1055/01
SRV Mill Services (Pty) Ltd v CCMA & Others
Misconduct
Strike
Held that a consideration of conflicting evidence revealed no factual basis for such differentiation and concluded that most of the dismissals were unfair, as indeed being selective, although four individual dismissals were upheld on substantive grounds.
JA37/01
CEPPWAWU; B Lawson and Others v Metrofile (Pty) Ltd
Misconduct
Theft of Rubber tape
Commissioner erred in seeking to correct the employers sanction and failed to give proper consideration to the employers zero-tolerance policy. Held further that shifts in policy affect the requirement of consistency and render it a less than hard and fast rule. With regard to the issue of a breakdown in the trust relationship reference was made to the viewpoint of Grogan in Dismissal (Juta, CT 2002) on page 99 and the judgment in De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)
Dismissal fair
C819/02
Consani Engineering (Pty) Ltd v CCMA; Rabker-Naicker H NO; National Union of Metalworkers of SA & Shoko, J
Misconduct
with rudeness to a client, poor customer service and damaging the image of the company
Unfair
C682/03
The Magic Company v CCMA, Mazwi V & Phete E
Misconduct
Gross negligence, unauthorised use of company funds
Ms Molope admitted that she held the responsibilities of an Area Manager but not the authority to act as such; noted that this contradiction was never properly explained.
substantively fair
JR1950/02
Molope, Ms Phoebe v Commissioner BH Mbha; CCMA & Morkels Stores
Misconduct
Irresponsible use of company credit card (not fraud)
Ms Marks reported herself to Ms Singh in the financial department saying that she had used the company card for personal expenses and wanted to know how to effect repayment. Thereafter she continued to use the card although not often, the figure of the usage was agreed to have been R1000, although other figures were mentioned from time to time. Ms Marks argued that there was no written policy dealing with the use of company credit cards
Unfair
JR152/04
Tibbett & Britten (SA) (Pty) Ltd v Marks, Marilyn; National Bargaining Council for the Road Freight Industry & Tsatsimpe, Mapalo N.O.
Misconduct
contravention of LOA rules
had made a false declaration
JA 45/03
ABSA Brokers (Pty) Ltd v Moshoana, GN N.O.; CCMA; Van Staden, J P
Misconduct
absenteeism
employee had communicated the arrest; dismissed the employee in absentia despite knowing that he was in prison; that there had been no indication that he had been wilfully absent; there had been a supervening impossibility for him to tender his services
JR 845/01
Trident Steel (Pty) Ltd v CCMA; Commissioner F Mooi; NUMSA & Vundla J
Existence
nobody had informed him of his dismissal and that he had relied solely on his own perceptions
therefore lacked jurisdiction and acted ultra vires and therefore the award fell to be set aside.
C218/03
American Leisure Corporation, Durbanville t/a Planet Fitness v Van Wyk, J; Connan, W N.O. & CCMA
Misconduct; omitted from his CV that he had previously worked for KSI; it was rightly considered risky for the company to keep an employee in a senior position if he were no longer trusted.
JR2116/03
Oracle Corporation SA (Pty) Ltd v CCMA; Nowosenetz, L N.O. & Clark, B
Misconduct
sentenced to various terms of imprisonment; Charged he was not gainfully employed
in s 17(5)(a)(i); and that dismissal by operation of law was not dismissal in accordance with s 186 of the LRA; dismissal in accordance with s 17(2)(c) was not relevant because the dismissal was substantively by operation of law.
JR563/03
Seema, L E v General Public Services Sectoral Bargaining Council; Commissioner M Mashego & Department of Justice
Misconduct
sending an offensive e-mail
; it had been sent to a computer which was owned by ING
Monitoring Prohibition Act (MP Act) ; and it had not been unlawful to read the e-mail
JR613/02
Van Wyk, S v Independent Newspapers Gauteng (Pty) Ltd; CCMA & Boyce, T N.O.
Absence from work
The employees were not dismissed but discharged by operation of law. The arbitrator and the Council had no jurisdiction to consider the matter.
D547/03
MEC for Education & Culture v Mabika N B; Dubazana, D N; NATU; Balkaran, S T & Education Labour Relations Council
Misconduct
Receiving a tip
Not an actionable offence.
JR1173/03
Swiss South Africa (Pty) Ltd v Louw, K N.O.; CCMA & Narayen, G
Misconduct
gaining access to managements drawers without authorisation it was noted that one witness testified before the Commissioner that the employee had forced open the drawer and removed a confidential document; the employee had done this openly in front of the witness; have been procedurally and substantively unfair
delay in instituting disciplinary proceedings had prejudiced the employee and no proper witness statements had been taken.
JR686/03
Riekert, F W v CCMA; Raffee, M S N.O. & Emerald Safari Resort & Casino (Pty) Ltd
Misconduct
behaving aggressively towards a customer and using abusive language, thus damaging customer relations.
employer was entitled to adopt the attitude that the risk of employing a senior employee who engaged in such behaviour and showed no remorse was unacceptably great
DA1/04
The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA
Misconduct
Remorse
De Beers Consolidated Mines Ltd v CCMA & Others ((2000) 21 ILJ 1051 (LAC)
DA1/04
The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA
Misconduct
Protected strike
while picketing at the Bloemfontein offices he incited others to picket, he threatened to hold the management of the branch hostage, and he caused damage to company property
Commissioner had committed a gross irregularity when he completely ignored evidence of the nature of the strike action. They averred that there was clear and undisputed evidence that the strike, despite being protected, was often violent and destructive; he had made no direct threats at all
JR1275/01
Fidelity Springbok Security Services (Pty) Ltd v The CCMA; Cronje, NO & Telford, W
Procedure
Double jeopardy
Branford v Metrorail Services (Durban) and Others [2004] 3 BLLR 199(LAC) the arbitrators award was set aside as the employee was punished twice for one offence. In their decision the LAC also relied on the finding in BMW (SA)(Pty) Ltd v van der Walt (2000)21 ILJ 113(LAC) which held that a second disciplinary enquiry may be opened against an employee if it was in all circumstances fair to do so.
C198/04
SATAWU obo Finca, X v Old Mutual Life Assurance Co (SA) Limited & Burger, J
Misconduct
gross misconduct; removed bones from chuck steak
was an established labour law principle that the value of unauthorised stock appropriation was irrelevant and that the correct sanction was dismissal
JR1046/02
Shoprite Checkers (Pty) Ltd v CCMA; Commissioner Hlatshwayo, MD & SACCAWU obo Maseko, D
Misconduct
Alcohol
breathalyser showed a red indicator and the employee was told to leave the company premises; The arbitrator observed that the employer had been inconsistent in the application of the rule against the use of alcohol at the workplace and found that because of the inconsistency the dismissal of the employee had been unfair
P539/02
United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni
Inconsistency of sanction ; the employer had failed to discharge the onus of justifying the differentiation in treatment
guidelines for employers on how to deal with matters of inconsistency were given in Cape Town City Council v Masitho & Others ((2000) 21 ILJ 1957 (LAC)
JR47/05
Rustenburg Platinum Mines Ltd (Bafokeng Rasimone Platinum Mine) v CCMA; Matlala, ML N.O.; Solidarity & Le Roux, R
Misconduct
employees clocked in by their colleague had not yet arrived at work although the rest were on the premises. The employees were charged with fraud.
finding that the employees must have benefited in order for their actions to constitute fraud was an error of law
JR 911/05
Kloof Gold Mine: A division of Goldfields Mining SA (Pty) Ltd v CCMA; Cachalia, A N.O.; United Association of SA & Others
Consistency
consistency was an element of disciplinary fairness to be determined in each case and it should not be rigidly applied (see SACCAWU & Others v Irvine & Johnson [1999] 20 ILJ 2302 (LAC)
JR 953/04
Minister of Correctional Services v Mtembu, J B; The General Public Service Sectoral Bargaining Council & Groves, W
Misconduct
Assault
the sanction of dismissal was not appropriate as Mr Tyumse had probably been provoked or had acted in self-defence. In her finding she also took into account Mr Tyumses clean service record of more than 20 years as a strong mitigatory factor
JR 881/04
Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty) Ltd; Savage, K N.O.; Tyumse, S & NUM
Misconduct
dishonesty, attempted blackmail or extortion, and conduct destroying the employment relationship; attempted extortion of R5 million; the arbitrator also failed to consider whether the company was entitled to charge Mr Breugem with misconduct a second time, despite the charges being different, after the ruling of the first hearing; company to pay Mr Breugem compensation in an amount equal to nine months remuneration.
C 608/05
Breugem, P v De Kock, C N.O.; CCMA & Weltevrede Kwekery
Fixed term contract
Amount of compensation in terms of s 194 cannot extend beyond the termination date of the contract
C934/01
Nkopane & Others v Independent Electoral Commission
Consistency
It therefore does not necessarily follow that the outcome of a disciplinary hearing of the employees charged with the same offence will automatically be the same.
JR315/06
Rustenburg Platinum Mines v CCMA & Others
Retrench
no consultation with union outside bargaining unit
Lifo not followed
D987/04
Perumal & Another v Tiger Brands
Rules
deviating from own code and dismissing employee while code recommended final warning
JR2571/04
Wozney v Myhill & Others
Incapacity (health reasons)
enquire into the employees ability to perform the work; the extent of the employees inability; the extent to which the employees work circumstances can be adapted to accommodate the disability and alternatives short of dismissal.
consult in a meaningful
consider options for reasonable accommodation; alternatives will cause unjustified hardship
JR 662/06
Standard Bank of South Africa v CCMA & others
Date of dismissal is the date on which employee informed of the non-renewal or renewal on less favourable terms not date on which contract expires
not date when contract terminated
190(2)
P139/07
Ndlambe Municipality v CCMA & Others
Misconduct
Imprisonment
preferred charge; supervening; impossibility of performance,
JR2025/06
Eskom Ltd v CCMA & Others
Fraud
No fraud established; Dismissal unfair; Employee could have been dismissed for gross negligence had he been charged with that
D757/06
Mhlatuze Water Board v CCMA & Others
Misconduct
Employee misrepresenting himself as an attorney acting on employers behalf; Dismissal justified
D863/06
Nampack Corrugated Containers (Pty) Ltd v CCMA & Others
Misconduct
Alcohol
fair
C5054/06
NUM & Another v CCMA & Others
Misconduct
Whether conduct work related; Employer to show a nexus between the employees conduct and its business; Stokvel scheme
JR2558/05
Pick n Pay Family Store Brits v Molebalwa N.O & Others
Misconduct
Fairness of a sanction
employees belief that his action was in the interests of the employer and not in his own interest
C434/06
Worldnet Logistics (Cape) (Pty) Ltd v CCMA & Others
Poor performance
Employee not meeting targets over protracted period despite counselling; Dismissal fair
P286/06
Chesteron Industries (Pty) Ltd v CCMA & Others
Misconduct
Alcohol related
Insufficient evidence that employees faculties, performance or conduct affected
P488/05
Scrader Automotive (Pty) Ltd v MEIBC & Others
Reason
The reason for the dismissal also had to be the one in existence at the time the employee was notified of his dismissal
JR819/07
Landsec & Another v CCMA & Others
board membership
termination resulted in dismissal
JS349/07
South African Post Office Ltd v Mampeule
Consistency
An inconsistency challenge would fail where the employer was able to differentiate between employees who committed similar transgressions on the basis of, among others, different personal circumstances, the severity of the misconduct, or other material factors.
JR243/05
Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others
Sexual Harassment
to be viewed from the point of view of the victim the question was therefore how the victim perceived the conduct, and whether or not the perception was reasonable
P487/09
Motsamai v Everite Building Products (Pty) Ltd
Meaning of “dismissal”
The fact that the employer had never expressly referred to dismissal in any email was not significant in any way, since it had not been necessary to use the word dismissal.
No return to work, refusal fair
JR1864/09
Setcom (Pty) Ltd v Dos Santos & Others
Operational requirements
provide sufficient information to enable them to participate meaningfully in the process
C945/09
Weber v Ordertalk SA (Pty) Ltd
Misconduct
Bringing name in disrepute
no evidence that relationship of trust had broken down.
P 233/10
Ikwezi Municipality v SA Local Government Bargaining Council and Others
Misconduct
Absence without leave
the reason for the employees absence, the duration of the absence, the employees work record, and the employers handling of this offence in the past. The onus rested on the employee to tender a reasonable explanation for her absence.
Sangoma course
JR1856/08
Kievits Kroon Country Estate (Pty) Ltd v CCMA & Others
Misconduct
Alcohol abuse
Was responsible for actions
Dangerous work
C644/2009
Transnet Freight Rail v Transnet Bargaining Council and Others
Misconduct
Absenteeism
Medical certificate by traditional healer
Rejected
JR1412/05
Vodacom (Pty) Ltd v CCMA & Others
Misconduct
E/e must be blamed
no breakdown trust relationship
P608/09
Prowalco (Pty) Ltd v CCMA and Others
Misconduct
insubordination
(i) an order, which could also be in the form of a warning, had to have been given to the employee; (ii) the order had to be lawful; (iii) the reasonableness of the order had to be beyond reproach; and (iv) the refusal or failure by the employee to obey the order had to have been serious enough to warrant dismissal.
JR3479/09
Motor Industry Bargaining Council v CCMA & Others
Misconduct
Refusal to work overtime
against BCEA
JR1639/05
Maneche & Others v CCMA & Others
Misconduct
Dishonesty
Procedure
no mitigation; cannot cure dishonesty
D600/05
Kalik v Truworths (Gateway) & Others
Misconduct
Language
“Monkey”
The level of malice, the extent of the abuse and its degree are factors that may aggravate the offence.
D202/06
Edcon Ltd v Grobler & Others
Misconduct
HIV AIDS
Conflict of interest
D781/05
Bootes v Eagle Ink Systems KZN (Pty) Ltd
Misconduct
Alcohol
failure to prove
JR1895/05
Astore Africa (Pty) Ltd v CCMA & Others
Misconduct
Dishonesty
Presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record are likely to have a minimal impact on the sanction to be imposed
D679/04
Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others
Misconduct
Reasons at time of dismissal apply
DA 10/05
Fidelity Cash Management Service v CCMA & Others
Misconduct
racist remark
“he felt that the manager was busy”; interrogating him as if I am in Vlakplaas here.
employers should also guard against labelling actions as racist without having investigated properly.
JR3232/06
Vodacom (Pty) Ltd v Gildenhuys N.O. & Others
Misconduct
stock loss
JR2980/05
Mercurius Motor Transport v Moletsane N.O. & Others
Misconduct
Sanction
Employer may not increase sanction on appeal unless provided for in its disciplinary procedure and audi alteram partem rule applied
Misconduct
Theft
Driver deviating from route on day employers fresh produce stolen
D550/06
Freshmark (Pty) Ltd v SACCAWU & Others
Misconduct
Dismissal; Inconsistency
One employee found guilty and another not despite the circumstances of their alleged transgression being the same; Unfair
JR955/07
Alstom Electrical Machines (Pty) Ltd v CCMA & Others
Misconduct
Sanction
Whether employer may alter sanction of final warning imposed by chairperson to dismissal; findings and conclusions were so grossly unreasonable as to warrant interference by the employer
JR 2158/07
Rustenberg Base Metal Refiners (Pty) Ltd v Solidarity & Others
Misconduct
dishonesty
dismissal of the third respondent (the employee) for misconduct was too harsh. There were various authorities to support the view that it was not every act of dishonesty that would lead to an automatic dismissal
JR1609/06
Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others
Misconduct
dishonesty
Other case law cited
Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC
JR1609/06
Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others
Misconduct
Breathalyzer test
company policy on Breathalyzer
D483/06
Arangie v CCMA & Others
misconduct
pornography
inconsistency; parity principle
First, it was trite that not every wrong conclusion of law led to a conclusion that there had not been a fair trial; the mistake of law had to be material. Secondly, the law as it currently stood was that an employer was entitled, when it was fair to do so (subject to the qualification that it was only in exceptional circumstances that it would be fair), to revisit a penalty already imposed and substitute it with a more severe sanction.
D460/08
Samson v CCMA & Others
Misconduct
Consistency
Gravity of misconduct relevant; seniority relevant; different sanction justified; application dismissed
JR2629/07
Nel v The Transnet Bargaining Council & Others
Misconduct
Insubordination
finding of insubordination as opposed to gross insubordination in arriving at the conclusion that dismissal was too severe a sanction
C174/07
m Hand-to-Hand Couriers v National Bargaining Council for the Road Freight Industry & Others
Misconduct
Alcohol
misconduct and incapacity due to ill health
JR2148/08
Saga Moses Mahlangu v Minister of Sport and Recreation
Misconduct
misrepresentation qualifications
trust relationship not broken
JR531/08
Westonaria Local Municipality v South African Local Government Bargaining Council & Others
Misconduct
malicious damage to an aircraft and not following standard operating procedures.
JR2353/05
Equity Aviation (Pty) Ltd v SATAWU obo Thoga & Others
Misconduct
Penalty
Special leave for long period
Unlawful
D908/09
Antonie Willem Heyneke v Umhlatuze Municipality
Misconduct
Sanction
The nature of a commissioners task in considering the question of sanction was not to decide what he/she would have imposed as a sanction, but rather to decide whether what the employer decided as to sanction had been fair.
C966/08
Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others
Misconduct
Sanction
Other case law cited
Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC))
C966/08
Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others
Misconduct
Previous disciplinary record
Irretrievable breakdown in relationship not established
JR1516/07
South African Revenue Services v CCMA & Others
Misconduct
Bringing name in disrepute
Objective test; examine entire context
Objectively, the type of conduct displayed by the employee had had the potential, at the very least, to call into question the reputation of the employer.
DA22/08
Timothy v Nampak Corrugated Containers (Pty) Ltd
misconduct
Renting of vehicle
breach of trust
JR2279/07
misconduct
breach of trust
Other case law cited
Edcon v Pillemer NO & Others (2009) 30 ILJ 2642 (SCA)
JR2279/07
Mathews v CCMA & Others
misconduct
Alcohol abuse
Consistency
consistency in cases of dismissal did not apply as a matter of rule, but rather as part of the assessment of the fairness of the dismissal
C23/08
National Union of Mine Workers & Another v CCMA & Others
misconduct
Rule Zero tolerance
C23/08
National Union of Mine Workers & Another v CCMA & Others
Misconduct
Theft
cable from a bin, no rule existed
P491/08
Ducan Manufacturing v The Metal and Engineering Industries Bargaining Council & Others
Misconduct
Consistency
Onus on employer to show
JR2915/08
Woolworths (Pty) Ltd v Matlala NO & Others
Misconduct
Sanction:
following factors: the employee had had an unblemished service record of 16 years; the value of the food taken by the employee had been minimal; it had been evident from the evidence presented at arbitration that the employee had not acted in flagrant violation of company rules; the item the employee had taken was not a luxury item or an item which the employee had stolen to enrich herself; the employee had not been employed in a supervisory position; and she had not worked in a specialty department, from where most of the shrinkage in the employers shop originated.
JR2786/08
Superand Superspar v Retail & Allied Workers Union obo Khoza & Others
Misconduct
False driver’s license
no remorse
trust breached
Misconduct
Procedure
less formal approach particularly suitable where senior management employee; aware that his misconduct had destroyed the trust relationship; conceded to superior that he had failed
C109/2010
Nitrophoska (Pty) Ltd V CCMA and Others
Misconduct
Procedure
Other case law cited
Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC)
C109/2010
Nitrophoska (Pty) Ltd V CCMA and Others
Misconduct
Assault
30 years’ service; fairness in favour of the employee
(i) the employee had not denied the commission of the offence; (ii) he had accepted that what he had done was wrong, and had subjected himself to a further medical assessment and treatment; (iii) the offence had been a result of provocative behaviour on the part of the learner; and (iv) the disciplinary action had been taken only because of pressure from outside the school. The matter could possibly have been resolved through internal facilitation.
JR2885/08
Stander v Department of Education, North West
Misconduct
Insubordination
failed to wash his truck
employer had acted too hastily in dismissing him; progressive discipline
JR 896/10
Karan Beef (Pty) Ltd v Mbelengwa NO and Others
Misconduct
Theft copper wire
Defence he was a kleptomaniac, issue before the arbitrator concerned the dishonest conduct of the respondent
JR 2191/09
Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others
Misconduct
influence of alcohol
category of misconduct for reporting for duty under the influence of alcohol had not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer from such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit. Once a commissioner finds that an employee is not an alcoholic he/she is required to consider whether a finding of guilt is fair and whether the sanction applied by the employer is reasonable and justified in the circumstances. In order to do this the commissioner is required to continue to apply the law relating to misconduct and not that relating to incapacity. A further consideration ought to be the implications of being lenient in the application of an important rule and the message such leniency sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust. The commissioner had failed to take these principles into account in coming to the conclusion that he did
D822/10
Builders Trade Depot v CCMA and Others
Misconduct
corruption
JR948/09
Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others
Misconduct
Corruption
Prevention and Combating of Corruption Activities Act of 2000
JR948/09
Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others
Misconduct
absenteeism
absence from work for a period of eight days.
laid down a rule; instructed to call his manager directly before six; not unreasonable for the employer to want to know when the applicant would be back at work
D994/09
Toyota SA Motors (Pty) Ltd v Lewis and Others
Misconduct
alcohol was being sold on the farm
employee called out that he sold alcohol
JR 433/10
Rechs Nurseries (Pty) Ltd v CCMA and Others
Misconduct
Alcohol
Zero tolerance
Level of alertness required could not be compared to that of a pilot Dismissal too harsh in the circumstances
C24/2011
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others
Misconduct
Alcohol
type of the work
did not perform skilled, technically complex and responsible tasks: he was a general worker who was loading tyres onto a truck at the time
C24/2011
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others
Misconduct
corruption
J420/08
SAMWU v North West Housing Corporation & Another
Misconduct
Dismissal
Probation
No procedure followed
JR2175/09
South African Football Association v Ramabulana NO & Others
Misconduct
Dishonesty
Steeling R14-00 caught on security cameras
Employees conduct destroying trust relationship; Length of service and clean record cannot serve as mitigating factors
JR1068/02
Ster Kinekor Films (Pty) Ltd v Maseko N.O. & Others
Misconduct
for sleeping underground
dismissal was too harsh
JR1869/06
NUM & Another v CCMA & Others
Misconduct
Stock loss
evidence needed to be led to substantiate the fact that continued employment would be intolerable
JR1333\05
New Clicks SA (Pty) Ltd v CCMA & Others
Misconduct
gross negligence; security of cash
JR2853/07
Edgars Consolidated Stores Ltd v CCMA & Others
Misconduct
Sanction
take into account all the circumstances; consider the importance of the rule breached; consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employees challenge to the dismissal; consider the harm caused by the employees conduct; consider whether additional training and instruction may result in the employee not repeating the misconduct; consider the effect of dismissal on the employee and consider the employees service record.
JR2853/07
Edgars Consolidated Stores Ltd v CCMA & Others
Misconduct
Disciplinary notice
must be unambiguous and must contain sufficient and precise information to ensure employee has proper opportunity to prepare
JR1363/07
Davies Plumbing Civils CC v CCMA & Others
Misconduct
authority
the manager who had signed the letter authorizing the employees extended absence did not have the authority to do so; this could not become the problem of the employee.
JR1363/07
Davies Plumbing Civils CC v CCMA & Others
Misconduct
Procedure
Not allowed representation; delay in obtaining a representative was likely to have had an impact on the speedy finalization of the disciplinary hearing, a balance had to be struck between the interest of speedy finalization and a right to representation.
JR948/07
ITT Flygt (Pty) Ltd v Odgers & Others
Misconduct
sexual assault
Touching breast then immediate assault
JR2763/08
CASHBUILD (Pty) Ltd v Ramotshela NO & Others
Misconduct
Disciplinary hearing; illegal immigrant.
procedural fairness, Rampai J held that a meeting between an employer and employee could never be a substitute for a disciplinary enquiry and that what had happened in the meeting (in which he was informed of his dismissal) came nowhere close to a hearing.
JR1032/04
Sibande v CCMA & Others
Misconduct
procedure; Disciplinary action
Mandate
Board to decide
J1780/10
Dyasi v Onderstepoort Biological Product Ltd and Others
racial slur
we need to get rid of the whites
racism through indirect, underhand or divisible means
JR1904/2010
Modikwa Mining Personnel Services v CCMA and Others
Misconduct
disclosed confidential customer details
misrepresentation by the falsification of his CV
J2121/10
MTN Service Provider (Pty) Ltd v CCMA and Others
Absence
Attending traditional healer course
Ubuntu
Religious diversity
JA 78/10
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others
Misconduct
Gross Negligence to be Negligence
loss of delivery of R135000 goods at bogus customer
Unfair
C151/2012
Solid Doors (Pty) Ltd v Hanekom NO and Others
Misconduct; Parity principle; Not consider final warnings in collective dismissal
D235/03
SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd
Other case law cited
Trident Steel (Pty) Ltd v CCMA & Others (2005) 26 ILJ 1519 (LC)
JR2025/06
Eskom Ltd v CCMA & Others
Misconduct
operational incapacity ; No such category of dismissal
JR1061/07
Samancor Ltd v MEIBC & Others
Procedural fairness
Chairperson also acting as initiator; Unfair
JS877/05
Misconduct
Accepting a bribe
Consistency
Dismissal fair although inconsistent
JR 2028
Mphigalale v Safety & Security Sectoral Bargaining Council and Others
Misconduct
Imprisonment
trite that supervening impossibility of performance is a defence to breach of contract which would also include the employment contract. Where the employee is the cause of his absence from work, it appears that his service may be terminated. Where it is a factor beyond his control like an unlawful arrest which either leads to his acquittal or withdrawal of the charges, it cannot be said that the employee was absent without permission. As his incarceration was beyond his control, it could not be said that he was absent without permission. He had a valid reason for his absence and had to be reinstated but with loss of income.
JR1061/07
Samancor Ltd v MEIBC & Others
Inconsistency
Racist email
JR 3390/05
Edgars Consolidated Ltd (EDCON) v CCMA & Others
Theft
Value of items stolen not the determining factor; Regard must be had to the impact of the conduct on the employment relationship
JA08/04
Shoprite Checkers (Pty) Ltd v CCMA & Others
Misconduct
Gambling
no harm suffered
PA10/09
Volkswagen v Koorts
Misconduct
Charges
to be notified with sufficient particularity of the real allegations against her
DA4/06
Edcon Ltd v Pillemer N.O. & Others
Misconduct
Charges
charged for failing to report accident, found guilty for lying at hearing; unfair
DA4/06
Edcon Ltd v Pillemer N.O. & Others
Misconduct
Resigned but e/er decide to dismiss; no procedure; CCMA found procedurally unfair; no compensation
JA22/05
Ellerine Holdings Ltd v CCMA & Others
Misconduct
Timekeeping
JA37/06
Mutual Construction Company TVL (Pty) Ltd v Ntombela NO & Others
Misconduct
Theft of scrap metal
Zero tolerance
the dismissal of the employee had been justified for operational reasons and had been fair.
JA51/09
George Miyambo v CCMA & others
Misconduct
Collective misconduct
JA14/08
CEPPWAWU v National Bargaining Council for the Chemical Industry & Others
Misconduct
Removal, Attempted removal, unauthorized possession of 1 L milk
If E/r lost control
DA1/08
Rainbow Farms (Pty) Ltd v CCMA & Others
misconduct
false information in CV
to appoint a person to a post who was only qualified for the post by making untrue claims in her application
JA56/06
SA Post Office Ltd v CCMA and Others
misconduct
arbitrator and Labour Court holding that employee only negligent and dismissal not warranted
JA56/06
SA Post Office Ltd v CCMA and Others
Misconduct
Insubordination
“not every case of insubordination triggered a dismissal”
CA6/2011
Wasteman Group v SAMWU
forged signature, Expert witness, Employee did not provide his own witness.
JR2512/2007
National Union of Mineworkers and Another v CCMA and Others
Romantic affair, email
Employees conduct not bringing employer into disrepute.
C158/2011
HRP Distribution v National Bargaining Council for the Road Freight Industry and Others
Theft, two litre bottle of milk that had been delivered as a donation by a local dairy, the issue of the proportionality of the sanction to the offence was therefore not relevant: the critical issue was whether the employee was guilty of misconduct or not in the light of the facts of the case.
JA12/10
Matsekoleng v Shoprite Checkers (Pty) Ltd
Insubordination, failed to call fellow worker, failure to refer to disciplinary code.
JR2327/10
National Union of Mineworkers and Another v CCMA and Others
Insubordination
Hand over laptop, was totally unacceptable and absolutely undermined the authority of his employer over him.
JR853/2011
Ndwanya v SA Local Government Bargaining Council and Others
fraud, manager not trained and inexperienced, TV license not produced on sale.
JR 1387/09
JDG Trading (Pty) Ltd t/a Electric Express v Osler and Another
Failure to declare items at security, Unfair
D787/10
Woolworths (Pty) Ltd v CCMA and Others
Insubordination
persistent insubordinate behaviour could justifiably not be tolerated by any employer.
JA 25/11
NUM v Northam Platinum Ltd
Procurement policies, no insinuation
that he was out to enrich himself, if a senior manager accountable.
J1830/11
Passenger Rail Agency of South Africa (Pty) Ltd v Tokiso Dispute Settlement (Pty) Ltd and others
Misconduct
serious disrespect
Stated: that management harassed employees. The invitation did not prescribe the format and the contents of the comment about the employees views. Dismissal was not an appropriate sanction.
(JR221/12) [2013] ZALCJHB 167
Legobate v Quest Flexible Staffing and Others
Misconduct
Absence without leave
Failing to examine whether trust relationship had broken down.
(JR381/12) [2013] ZALCJHB 169
SATAWU obo Matlatso v CCMA and Others
Misconduct
Provided an affidavit to a professional consultancy concerning matters that were detrimental or potentially detrimental to his employers interests in potential litigation.
Dismissal fair
(JR 815/12) [2013] ZALCJHB 163
Buys v Tokiso Dispute Settlement (Pty) Ltd and others
Receiving gifts
Consistency: Have to take into account employees seniority and that magnitude of her offence compared to those of other employees.
(JR 3166/10) [2013] ZALCJHB 226
Nedbank Ltd v CCMA and Others
Constructive dismissal
Reduction in salary, Test: Causation, was resignation due to conduct of employer, was resignation as a result of us and fundamental breach of employment contract, was employer made aware of this.
JR 1551/11
Schindler lifts
Misconduct
Charges was negligence and not gross negligence, duration of offence and loss was very serious.
JR 1643/08
United transport and Allied trade Union v Gaylard
Dishonesty
Enticing other employees to strike, denial that he participated in strike, dishonesty, trust relation broken down, dismissal substantively fair.
(JR 2650/2010) [2013] ZALCJHB 216
Tiger Brands Field Services (Pty) Ltd v CCMA and Others
Misconduct/ Poor work performance
Clear from the evidence that the real reason was the perceived poor performance by the employee, Dismissal substantively unfair. Decision had been taken to terminate the employees services before the consultation process commenced.
(CA 15/2011) [2013] ZALAC 30
4Seas Worldwide (Pty) Ltd v CCMA and Others
Misconduct
Underringing at till, only suspicion, Unfair.
(DA 4/11) [2013] ZALAC 29
Mbanjwa v Shoprite Checkers (Pty) Ltd and Others
Dereliction of duty and gross negligence
alleged dereliction of duty and gross negligence for failing to follow due procedure to shut down the plant
The arbitrator had furthermore failed to appreciate the task that confronted him in considering whether the trust relationship had broken down.
JR 2799/11) [2013] ZALCJHB 280
National Petroleum Refiners (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others
Alcohol
Arbitrator treating matter as one of incapacity despite the employee not having previously raised issue of alcoholism or sought assistance, No obligation on employer to assist employee who does not seek assistance.
(JR 667/2011, J 515/2013) [2013] ZALCJHB 302
ADT Security (Pty) Ltd v CCMA and Others
By operation of law
(JR 2934/11) [2014] ZALCJHB 8
Public Servants Association obo Lessing v Safety and Security Services Bargaining Council and Others
Alcohol
The existence and the reasonableness of the rule governing the conduct complained of was not disputed by the employee. Dismissal fair.
(JR 90/2012) [2014] ZALCJHB 14
Xstrata Coal South Africa v CCMA and Others
Biased:
Co-owner of business and husband of person who had made complaint. No evidence of bias on record and issue never raised or put to witnesses.
Consistency: never disputed that the employee had occupied the more responsible position as cashier and there was no evidence on important issues pertinent to the question of consistency for him to assume he was really dealing with comparable cases.
(JR3063/2010) [2014] ZALCJHB 48
Vaal River Motors CC v Dispute Resolution Centre and Others
Fraud, C.V.
Be no doubt in the trust of that person who was responsible for the maintenance of the applicants accreditation system. Her dishonesty in the present case was of a serious magnitude. Fair.
(D303-11) [2014] ZALCD 2
Rainbow Farms (Pty) Ltd v Dorasamy NO and Others
Sanction
Mere fact of breach of misconduct not entitling employer to dismiss. Consideration of an appropriate sanction constituted an important yet separate component of the arbitration process. Not even considered important factors such as the employees considerable length of service (24 years) and the fact that he had an unblemished service record with his employer for that long period.
(JR297/2009) [2014] ZALCJHB 76
Jansen v CCMA and Others
Authority
No quorum
(J620/14) [2014] ZALCJHB 122
IMATU and Another v City of Matlosana Local Municipality and Another
Biased
Employees had not challenged alleged bias at disciplinary hearing and not producing any evidence thereof.
(JR706/2012) [2014] ZALCJHB 137
Pillay and Another v Broadband Infraco (Pty) Ltd and Others
Misconduct.
she was given a prepared and already signed retrenchment agreement. She was instructed to sign the agreement or leave immediately. When she refused to sign she was told to pack her things and leave immediately. Charged with gross insolence and insubordination and was dismissed. She was provoked. Ulterior motive in proceeding with disciplinary action.
(JR1767/2012) [2014] ZALCJHB 114
Windscreen Distributors (Pty) Ltd v Motor Industry Bargaining Council (Dispute Resolution Centre) and Others
s 46 and s 48 of Close Corporations Act 71 of 2008 still applicable
Of member of a close corporation. No proper decision taken at meeting of close corporation to dismiss member. Dismissal null and void.
(C568/12) [2014] ZALCCT 29
Chafeker v CCMA and Others
Misconduct
Misrepresentation in job application
Registration of in terms of Act 56 of 2001. Prohibition of employment of security officers with previous convictions. Applicable only to convictions with in period of 10 years prior to coming into operation of the Act in November 2001.
(C 389/2011) [2014] ZALCCT 35
G4S Secure Solutions (SA)(Pty) Ltd v Ruggiero NO and Others
Misconduct
unauthorised absence
Dismissal without application of progressive discipline. This failure to warn employee of change in attitude should have been brought to attention of employee by commissioner
(P15/13) [2014] ZALCPE 11
Tom v CCMA and Others
Jail sentence without bail
Whether his incapacity was permanent or temporary in nature. The applicant was unable to perform his duties in terms of his contract of employment and that his employer had acted fairly by dismissing him.
(P561/11) [2014] ZALCPE 10
Gwadana v South African Local Government Bargaining Counsel and Others
consuming company property without authorisation
sanction
Precepts of Items 3(4) and 3(5) of the Code of Good Practice on Dismissal read with s 188(2) of the LRA, and the emphatic weight given by the Constitutional Court to the importance of having regard to a number of factors in deciding whether it was fair to dismiss an employee for misconduct. Would have dispelled the notion that a finding of guilt automatically determined the sanction. Applicant consistently dismissed any employee for the misconduct was not sufficient reason.
(C566/2011) [2014] ZALCJHB 359
Pick n Pay Retailers (Pty) Ltd v CCMA and Others
Misconduct: Theft
unauthorised possession of a bottle of mayonnaise
distinction between unauthorised position and theft. The court held that, generically, theft and unauthorised possession were both forms of dishonesty and both were premised on conduct of an employee which deprived the employer of the ownership of an item.
Unauthorised possession dispensed with the requirement of intention and called on the consideration of three elements, namely: 1 an item belonging to the employer, 2 which was found in the possession of the employee and, 3 for which the employee has no authority to possess.
Continental Oil Mills (Pty) Ltd v Singh NO and Others
(JR 2152/2010) [2013] ZALCJHB 30
Sylvania Metals (Pty) Ltd v Mello NO and Others
Misconduct: Breaking a rule
Was no need for a permit to adjust the blower valve as there was no proof that a policy existed to this effect and furthermore that if there had been need for a permit.
(JR 3246/11) [2015] ZALCJHB 35
Sylvania Metals (Pty) Ltd v Mello NO and Others
Misconduct
Viewing of pornographic material, give him a final written warning.
Implied term did not extend to include the right of an employer to substitute its own sanction for that of the chairperson, particularly in a situation where the parties to a collective agreement had elected expressly to confer on the disciplinary chairperson the sole power to impose the final sanction.
Dismissal was substantively fair. The employee was awarded 12 months remuneration as compensation for his procedurally unfair dismissal.
(C683/11) [2015] ZALCCT 14
South African Revenue Service v CCMA
Misconduct
Cashiers, cash was short to the extent of their cash floats.
Show signs of tampering. Not every irregularity would vitiate the entire award: the reasonableness of the arbitration award had to be assessed in the light of the totality of the evidence presented at the arbitration. The possibility that the store administrator could be responsible for the shortfalls was less persuasive given that there was uncontested evidence that a drop procedure had to be followed when dropping the bags.
(DA7/2013) [2015] ZALCD 17
Woolworths (Pty) Ltd v CCMA and Others
Misconduct
Told her that the company was no good and that she had made a mistake in joining it. The secret recording of interactions with the firm in the course of the process, was also not bona fide.
In the event the court reduced the compensation of four months remuneration it would have awarded, by half on account of her underhand conduct during the formal consultation process.
(J 1433/09) [2015] ZALCJHB 123
Raftopulos v Van de Venter Mojapelo Attorneys Inc
doctrine of common purpose
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Other case law cited
Fawu & Others v ABI and the SCA decision in Chauke & Others v Lee Service Centre t/a Lesson Motors.
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Unauthorised possession
JR1685/12
Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015)
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) at para 34
Where an employee is found in unauthorised possession of company property, the evidentiary burden shifts to him to justify such misconduct.
theft
JR2986/2010B
Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015)
Kalik v Truworths (Gateway) & Others [2008] 1 BLLR 45 (LC) at [27].
[27] An employment relationship broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees that dishonesty will not be tolerated The rational for this approach are also informed by the consideration that a worker with an unblemished record cannot after an incident relating to an act of dishonesty, continue to be trusted. It is the operational risk to the business of an employer that arises from the dishonest conduct, which cancels off whatever good record the worker may have had before the commission of the offence. In other words there would be no purpose in conducting an inquiry into mitigating circumstances where a worker is guilty of misconduct relating to dishonesty. However, this approach would not apply in cases involving other forms of misconduct.
The factors to be considered would in my view be where the failure to intervene would lead to grave injustice or where justice might be attained by other means.
Trust
JR483/13
Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)
Miyambo v CCMA and Others (2010) 31 ILJ 2031 (LAC) at para 13
Misconduct: computer password
JR2525/11
Emfuleni Local Municipality v SALGBC and Others (JR2525/11) [2015] ZALCJHB 356 (14 October 2015)
At most, the employee created a hint of doubt and the remote possibility that some other person committed the offence. But this was not sufficient in light of the standard of proof applicable in labour disputes. In Potgietersrus Platinum Ltd v CCMA and Others[3], the Court held that an arbitrator incorrectly applied the required standard of proof. The arbitrator accepted the remote possibility that persons other than the accused employee had committed the offence, thus superseding the greater probability that the employees had committed the offence.
Evidence constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.
Misconduct: Consuming food
JR2711/12
Pick ‘n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2711/12) [2015] ZALCJHB 385 (6 November 2015)
Consumption of food items. Employee tried to deceive the Commission by attempting to introduce false evidence and showing no remorse. Dismissal fair.
Misconduct: hiding the laptop in one of the fridges
JR715/13
Pick ‘n Pay Hypermaeket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)
[17] On the question of substituting relief, I am satisfied that, on a balance of probabilities, the third respondent probably did admit to hiding the laptop in a fridge, and that the most probable reason for doing so was to remove it at a later stage. Accordingly, he was guilty of the misconduct he was charged with and dismissal was not an inappropriate sanction given the gross dishonesty involved, irrespective of the other mitigating factors. Such conduct is inherently destructive of the trust relationship.
Misconduct: gross misconduct in having taken a hamburger without permission
JR2493/2012
Engen Stargan (Pty) Ltd t/a Kroonvaal 1 Stop v NUMSA obo Ntoahae and Others (JR2493/2012) [2015] ZALCJHB 395 (13 November 2015)
It is clear to me that whatever rule was in place, it was more honoured in the breach than in the observance. I take note of the employees argument that, apart from Du Toits say-so, there was no clear evidence of a breakdown of the trust relationship between the parties and also, that the sanction of dismissal was too harsh in the circumstances
Misconduct
JR130/14
Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016)
Court: [23] In the present instance, there is no conceivable reason why race might justifiably have served as an identifier…Bester was not, as the commissioner suggested, benignly referring to a physical attribute in order to identify a certain person. Besters reference to Thomelang as a swartman was derogatory and racist.
CCMA Award: “I really do not see how such a phrase (referring to a physical attribute in order to identify certain person) could be classified as a racial remark. It would be similar to the situation where someone comes into the CCMA offices not knowing my name and then asking for me by stating the wit man who for instance parked next to the entrance gate.”
At the core of these decisions is the decisive break that the Constitution represent from a past in which racism was institutionalised and legitimised (see S v Makwanyane & another[1995] ZACC 3;1995 (3) SA 391(CC)) and that racism in the workplace is not to be tolerated. In the course of her judgment, Gaibie AJ found that an utterance by an employee to the effect that we need to get rid of the whites was clearly and unequivocally racist in nature. To the extent that the employee dismissed for making this utterance had contended that the words ought necessary to be viewed in the context in which they were used, Gaibie AJ said the following, at paragraph 29 of her judgment: I disagree with this proposition. Words have their own meaning and do not necessarily require a context within which to acquire meaning. Depending on the words used, there may however be circumstances in which words may acquire a different meaning. I do not believe that the racist slur uttered by Ramepadi requires a context for the purposes of interpretation. Their plain meaning indicates racism. What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purposes of subjugation, where particular race groups continue to be viewed as other.
Modikwa Mining Personnel Services(2013) 34 ILJ 373 (LC)
(see, for example, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others(2002) 23 ILJ 863 (LAC),Lebowa Platinum Mines Ltd v Hill(1998) 19 ILJ 1112 (LAC))
Campbell Scientific Africa (Pty) Ltd v Simmers & others(CA 14/2014, 23 October 2015)
in the context of a case concerning remarks of a sexual nature made to a woman employee, the use of derogatory and demeaning remarks are concerned with power relations and serve to create a work environment where the right to dignity of employees is impaired, and barriers to substantive equality reinforced.
Misconduct
JR2744/11
MCC Group of Companies v Mokabane N.O and Others (JR2744/11) [2016] ZALCJHB 234 (10 February 2016)
The
Misconduct
JR2630/12
NUM obo Mogashoa v Commission for Conciliation, Mediation and Arbitration and Others (JR2630/12) [2016] ZALCJHB 62 (23 February 2016)
Dishonest conduct in that you must have been aware or noticed that 17 kg of gold was hidden: Applicant was at the very least probably aware of the concealment of the gold in the weights which most probably occurred when they were working on the weights that Sunday. Even if he was merely a bystander, his silence in not reporting the concealment of the gold made him complicit with the boilermaker who was dismissed arising from the incident. The strong circumstantial evidence against him was such that he needed to provide a plausible explanation why, notwithstanding that evidence, he was not a participant or would not have been aware of what was going on despite working together with the boiler-maker that day in the small workshop.
Misconduct
JR2195/14
SAMWU obo LUNGILE FELICIA vs CCMA
Distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer’s instructions). Both forms of misconduct are properly embraced by the terms of ‘insubordination’ as used in Schedule 8 Code of practice: dismissal in the Labour Relations Act of 1995 (“the Code of good practice”).
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19.
[t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers’ authority.
Commercial Catering and Allied Workers’ Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J.
Probation
JR64/2014
IBM South Africa (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration (CCMA) and Others (JR64/2014) [2016] ZALCJHB 151 (19 April 2016)
The employer has the right to test the employee in different situations and determine whether she is capable of coping with the rigours of permanent employment. If a probationary employee is found to be wanting on key aspects of the job description the employer is at liberty to follow its instincts and not appoint the employee permanently. These important but often intangible considerations are inherent in the context of less compelling reasons…The Court held that when dealing with a person on probation in a responsible position like a professional assistant, where the person claims to have the necessary experience to do the job, it is not unreasonable for the employer to simply point out the perceived shortcoming of the probationer and to emphasize the importance of improving her performance if she wants to be permanently employed.
Rheinmetall Denel Munition (Pty)(Ltd) v National Bargaining Council for the Chemical Industry and others (2015) 36 ILJ 2117 (LC).
The Arbitrator failed to adopt a holistic approach to the large body of evidence before her and failed to consider and place the Third Respondents performance and behaviour during her probationary period in its proper context. This Court dealt with the distinction to be drawn between a probationary employee appointed to a responsible position and a junior employee on probation
Misconduct
JR251/2011
Klaas and Another v Eskom Holdings Ltd and Others (JR251/2011) [2016] ZALCJHB 152 (19 April 2016)
Negligence in that it was alleged that he was negligent in the supervision of an apprentice under his charge, which resulted in a contact incident, which in turn resulted in a fatality.
I agree with her findings that the severe consequences of First Applicants lack of care broke the trust relationship and that the sanction of dismissal was indeed the appropriate one.
Misconduct
JA78/14
Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78/14) [2016] ZALAC 1; [2016] 5 BLLR 435 (LAC) (3 February 2016)
moonlighting
the collective agreement, which was relied upon by the appellant, does not outlaw moonlighting. It expressly provides that employees had to apply for permission to do private work and it states that such permission shall not be unreasonably withheld.
Misconduct
CA13 /14
City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016)
Racism
without any justifiable cause, as being even [worse] than Verwoerd was an offensive racial insult,
SACWU and Another v NCP Chlorchem (Pty) Ltd and Others(2007) 28 ILJ 1308 (LC) at para 31; [2007] JOL 19526 (LC)
Sanction
CA13 /14
City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016)
Toyota SA Motors (Pty) Ltd v Radebe and Others [2000] 3BLLR 243 (LAC)
the fact of long service in employment does not always spare an employee, who committed a gross misconduct, from dismissal
Misconduct
JA119/14
Barloworld Logistics v Ledwaba N.O. and Others (JA119/14) [2016] ZALAC 17 (11 May 2016)
conducting a business without permission
no evidence led that employee conducting business using employers time and resources employee obtaining verbal permission from immediate superior
Misconduct: till shortages
JA38/15
Woolworths (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (JA38/15) [2016] ZALAC 41; (2016) 37 ILJ 2831 (LAC); [2017] 2 BLLR 137 (LAC) (27 July 2016)
The arbitrator (incorrectly) found that the dismissal of the employee was substantively unfair on the basis that the sanction of dismissal was too harsh under the circumstances. The arbitrator also found that the employees till takings discrepancy was not the result of any negligence on her part because the appellant could not find irregularities on the transactions of the employee.
Misconduct: existence of rule
JA45/2015
Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30; [2016] 9 BLLR 902 (LAC); (2016) 37 ILJ 2285 (LAC) (15 June 2016)
The vagueness of a rule against possession
[19]The defence of the appellant, throughout all the proceedings, was that his possession of the vouchers was with Moloros express permission. The word possession is of course the word that a layman would use to describe the handling of the vouchers. Were the appellant aware of the term detentio, he would probably have denied being in possession and claimed he merely detained the vouchers as agent of Moloro.
insubordination and insolence
JA83/2015
Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
[17]Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions.[5]It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employers lawful authority.[6]It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employers authority even where an instruction has not been given.[7]
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (L.
Insolence: is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employers authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful
On final written warning
JA83/2015
Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
Transnet Freight Rail v Transnet Bargaining Council and others (2011) 32 ILJ 1766 (LC).
An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning Usually, the presence of a valid final written warning at the time the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable I accept that the purpose of the warning is to impress upon the employee seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again.
Misconduct: refusal to perform night work
CA16/15
TFD Network Africa (Pty) Ltd v Singh N.O. and Others (CA16/15) [2016] ZALAC 50; [2017] 4 BLLR 377 (LAC); (2017) 38 ILJ 1119 (LAC) (8 November 2016)
Where the protective measures are not available to an employee required to perform night work, the employee is entitled to raise the absence of those measure as a defence to a charge of failing to work or disobeying an instruction.
Misconduct: failing to disclose record prior to appointment
CA2/2015
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55; (2017) 38 ILJ 881 (LAC) (25 November 2016)
Third respondent dismissed after 14 years’ service as security guard after it was discovered he failed to disclose his prior criminal convictions for rape and assault when applying for employment
Given the serious nature of the misconduct committed, the sanction of dismissal was fair. Appeal upheld with no order as to costs.
Misconduct: Absence
JR3104/12
National Nuclear Regulator v Commission for Conciliation, Mediation and Arbitration and Others (JR3104/12) [2016] ZALCJHB 177 (11 May 2016)
[105] It is clear that an employee who demonstrates a propensity for committing misconduct cannot escape the consequences of his or her conduct simply because a past warning has expired. Disciplinary action under the Labour Relations Act 66 of 1995, as amended, (LRA) is not a rigid process which fails to take into account the various parties interests.
National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2013) 34 ILJ 3118 (LAC) at para 38; Gcwensha v CCMA and Others [2006] 3 BLLR 234 (LAC).
An employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/misconduct. To do otherwise would be to subject and employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, failing outside the periods of applicability of final written warnings. The court found further that the final written warning will have added importance if the conduct to which it relates is of the same nature as the conduct the employee is subsequently charged with in the disciplinary enquiry.
Misconduct: Conflict of interest
JR1172/14
Browns the Diamond Store v Commission for Conciliation, Mediation and Arbitration and Others (JR1172/14) [2016] ZALCJHB 187 (13 May 2016)
[14]However, the reference to a possible conflict of interest in Phillip’s case must be understood in the context in which it is used. It refers to a situation where a person owing a fiduciary duty to another, in this case an employer, actually does act in their own interest in circumstances in which their interest might possibly conflict with that of their principal, but does not disclose the possible conflict of interest to the person to whom the fiduciary duty is owed before embarking on such action, or does so without that persons permission. The breach of the fiduciary duty does not occur because of the mere existence of a possible conflict but how the potentially conflicted individual acts when that situation arises.
Phillips v Fieldstone Africa (Pty) Ltd and another 2004(3) SA 459
which an employee accepted an offer of shares in a client of his employer without advising his employer or obtaining its consent, which the court held amounted to him succumbing to the potential conflict of interest between his duty and his self-interest. It was also suggested that the mere possibility of a conflict of interest was sufficient to warrant the employer taking action, on the strength of the authority of that case. In enumerating what might constitute a conflict of interest, the SCA held It extends not only to actual conflicts of interest but also to those which are a real sensible possibility.
Misconduct sexual harassment
JR1025/2013
Masemola v Commission for Conciliation, Mediation and Arbitration and Others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016)
sexual favour in exchange for the Applicant deleting nude pictures
Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 1 BLLR 1 (LAC).
Misconduct: leaving his vehicle unattended with a costly consequence to his employer
JR2720/13
Freshmark (Pty) Ltd v Matji N.O. and Others (JR2720/13) [2016] ZALCJHB 477 (20 May 2016)
the probabilities are overwhelming that the employee simply failed to exercise his supervisory obligations and that the pallet of fresh produce was returned to Centurion as a consequence, at a loss to the applicant. In both instances, there is no evidence on record that serves to exculpate the employee on the basis of the inconsistent application of discipline.
Misconduct: Right to privacy
JR1022/12
NUMSA and Another v Rafee N.O. and Others (JR1022/12) [2016] ZALCJHB 512; [2017] 2 BLLR 146 (LC) (31 May 2016)
failure to delete photos of the company from his mobile phone
[13]The applicants rightly contend that in the employment context, the competing interests of employees rights to privacy have to be weighed against the employers right to protect its business interests.
Dismissal fair
Misconduct: same charge as during disciplinary hearing
JR 1099/13
South African Municipali Workers Union and Another v Ngaka Modiri Molema District and Others (JR 1099/13) [2016] ZALCJHB 257; (2016) 37 ILJ 2430 (LC) (7 July 2016)
commissioner (not having) license to craft a charge that will justify a dismissal.
Misconduct: tested positive for being under the influence of drugs
JR232/2013
Modiba v Samancor Eastern Chrome Mine and Others (JR232/2013) [2016] ZALCJHB 275 (22 July 2016)
reliability of the equipment used to test the presence of cannabis
Commissioner failed to appreciate the incidence of onus in relation to the authenticity of the test and reliability of the equipment
Misconduct: failed and/or refused to comply with a lawful instruction
J1343/16
Solidarity and Others v South African Broadcasting Corporation (J1343/16) [2016] ZALCJHB 273; 2016 (6) SA 73 (LC); (2016) 37 ILJ 2888 (LC); [2017] 1 BLLR 60 (LC) (26 July 2016)
unlawful summary dismissal, dismissals in breach of contractual right to disciplinary procedure and in breach of right to freedom of expression, dismissals void ab initio
to dismiss SABC journalists for criticising the Protest Policy and in suspending them, amounts to conduct by SABC management which is plainly in breach of section 16(1) of the Constitution, and it is conduct in respect of which the Labour Court, in the exercise of its concurrent jurisdiction with the High Court under s157(2) of the LRA, can make an appropriate order in terms of s 158(1).
Misconduct: FRAUDULENT NON- DISCLOSURE, ALTERNATIVELY, MISREPRESENTATION, FURTHER ALTERNATIVELY FAILURE TO ACT IN THE BEST INTERESTS OF THE EMPLOYER
JR2946/2010, J494/13
Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)
Absa Bank Ltd v Naidu and Others [2015] 1 BLLR 1 (LAC) at paras 42-56.
[53] In De Beers Consolidated Mines Ltd, above, the Court further pointed out that [t]he seriousness of dishonesty ie whether it can be stigmatised as gross or not depends not only, or even mainly, on the act of dishonesty itself but on the way in which it impacts on the employers business. In the present instance, considering the nature of the appellants business, there can be no doubt, in my view, that Ms Naidus dishonesty severely adversely impacted on the business.
[55] On the issue of breakdown in trust relationship, occasioned by an employee’s dishonest misconduct, this Court (per Davis JA) in Shoprite Checkers (Pty) Ltd v CCMA and others, stated the following:
[T]his Court has consistently followed an approach, laid out early in the jurisprudence of the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 (LC) at paragraphs 3841 where Tip AJ said:
It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
Temporary employment service
JR672/15
Wood Group (South Africa) (Pty) Ltd v Ngobeni N.O. and Another (JR672/15) [2016] ZALCJHB 321 (23 August 2016)
Termination of contract: “In line with the Temporary Employment Contract entered into, we are accordingly terminating your services with LBJ Global Recruitment (Pty) Ltd[2] on the same date, to be viewed as completion of contract. In the interim, we will endeavour to secure an alternative assignment for you and will communicate with you should we be successful in this regard.
NUMSA v Abancedisi Labour Services [2014] 2 All SA 43 (SCA); [2013] 12 BLLR 1185 (SCA).
n that case, a labour brokers client refused the workers entry to the workplace. The labour broker argued that it had not dismissed them. The SCA held that they were dismissed when they were barred from the workplace by the client and that the labour broker had dismissed them as contemplated in s 186(1)(a) of the LRA.
insubordination and insolence
JR2195/14
SAMWU obo Felicia v Commission for Conciliation, Meditation and Arbitration and Others (JR2195/14) [2016] ZALCJHB 338 (26 August 2016)
meeting in which her performance was to be discussed
“a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority.”
Polyoak Packaging (Pty) Ltd v Siquibo NO and Others (unreported) case number 236/2008
As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place:
[a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place;
[b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly,
[c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal.
Grogan, in Employment Law, [J Grogan Workplace: Juta (11th edition) at pages 251-255.] states the following
The best measure of the gravity of insubordination and/or ‘insolence’ is the effect it has on the employment relationship. Other things being equal, an isolated refusal to carry out an instruction is less likely to destroy the relationship between the employer and the employee than sustained and deliberate defiance of authority. The latter form of insubordination is well illustrated by Theewaterskloof Municipality v SALGBC (Western Cape Division). The Labour Court held that a senior manager who accepted payment of an allowance well knowing that he was not entitled to it, then offered to repay the amounts in derisory instalments, had deliberately breached the trust relationship. Given the destruction of the employment relationship and his total lack of remorse, the employee could not rely on either the general right to progressive discipline or on his long and previously unblemished service record. The court upheld the employee’s dismissal.
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19
The Labour Appeal Court held that [t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers’ authority and in that regard, the Labour Appeal Court referred to the decision of Commercial Catering and Allied Workers’ Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J.
Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC
“the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee’s conduct poses a deliberate (wilful) and serious challenge to the employer’s authority
Bringing name into disrepute
JR2600/13
Maloka v Commission for Conciliation, Mediation and Arbitration and Others (JR2600/13) [2016] ZALCJHB 343 (31 August 2016)
Bringing SARS name into disrepute, conduct he was involved impacted on SARS name and reputation. ..not a requirement for the purposes of the charge in question for the Applicant to have made a public statement or issued a statement about SARSs activities, nor was it necessary for evidence to be led to demonstrate that indeed a conviction resulted from the conduct in question. This narrow interpretation of the charge of bringing a company’s name into disrepute in circumstances where an employee commits misconduct outside of working hours cannot be sustainable in the light of the above authorities and principles set out therein. The Applicants mere conduct in this case, considering the nature of his job and the business of SARS was sufficient for the charge to be sustained.
his conduct showed that he intended to involve himself in illegal activities by participating in rhino horn trading…t needs to be added that the conduct of the Applicant, but for the fact that the horn turned out to be that of a cow, bordered on criminality and involved dishonesty and corruption. Such conduct clearly had an impact on the employment relationship, especially in the light of his position as a law enforcement officer. Even more profound in this case was the Applicants dishonesty throughout the arbitration proceedings, with contrived and improbable versions, intended to mislead the Commissioner.
Dolo v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 905 (LC) at paragraph [19]
The applicant contends she committed no wrong against her employer. This is correct: her involvement in the fraudulent scheme did not concern any non-performance of her duties or other act of misconduct in the workplace. However, being a party to such a scheme held implications for her suitability to occupy a position in which she was entrusted to deal with the employers cash when her job required it. The first principle a person who is determining whether or not a dismissal for misconduct is unfair must consider in terms of Item 7(a) of the Code of Good Practice: Dismissal is whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace (emphasis added). What the emphasized portion makes clear, is that misconduct outside the workplace and outside of working hours may have a bearing on an employees continued suitability for employment. In each instance, a multiplicity of factual considerations can determine whether the employees conduct outside the workplace holds implications for their continued suitability for employment or some form of corrective discipline. In Hoechst (PTY) Ltd v Chemical Workers Industrial Union & Another (1993) 14 ILJ 1449 (LAC), Joffe JA (as he then was), held:
1. Where misconduct does not fall within the express terms of a disciplinary code, the misconduct may still be of such a nature that the employer may none the less be entitled to discipline the employee. Likewise the fact that the misconduct complained of occurred away from the work-place would not necessarily preclude the employer from disciplining the employee in respect thereof… In our view the competence of an employer to discipline an employee for misconduct not covered in a disciplinary code depends on a multi-faceted factual enquiry. This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s work-force, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the work-force as a whole, as well as on the relationship between employer and employee and the capacity of the employee to perform his job. At the end of the enquiry what would have to be determined is if the employee’s misconduct ‘had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties’. (Authorities omitted)
Misconduct: received money from members of the public
JR859/2013
Minister of Justice and Constitutional Development v PSA obo Mahlangu and Others (JR859/2013) [2016] ZALCJHB 350 (14 September 2016)
to place an employee who was guilty of dishonesty back in a position where honesty and integrity were paramount, would be outrageous and would amount to condoning his misconduct.
Misconduct: dishonesty
JR999/2014
Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016)
Nedcor Bank Ltd v Frank and others (2002) 23 ILJ 1243 (LAC).
Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.(See Toyota SA Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340 (LAC) at 345F-H; R v Brown 1908 TS 21; R v White 1968 (3) SA 556 (RA); Ex parte Bennett 1978 (2) SA 380 (W) at 383H-384C; S v Manqina; S v Madinda 1996 (1) SACR 258 (E) at 260e-h and The Oxford Dictionary.)In the Canadian case of Lynch and Co v United States Fidelity and Guaranty Co [1971] 1 OR 28 (Ont SC) at 37-38, the following was said (per Fraser J):”Dishonest” is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning. ‘Certainly, insofar as the appellant or its customers are concerned, no intention to steal, cheat, lie or act fraudulently is manifest. And what of the intention to conceal the true state of affairs from the management of the airport? That is not covered by the charge.
44]The Court further held that dishonesty implies intention on the part of the employee and negligence cannot give rise to a charge of dishonesty.
Failure to allow employee to return to work
JS787/14
Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016)
Failing to allow the applicant to return to work, in the circumstances of this matter, is tantamount to termination of employment.
[53]In summary, and based on what I have set out above, I have little hesitation in concluding that the conduct of the respondent, considered as a whole, was of the nature that seeks to bring about the termination of the employment relationship, and is certainly a repudiation of the employment contract of the applicant. This conduct includes representing to the applicant that he was welcome to return to work when this was in reality not the case, refusing his tender of work when it was first made, seeking to persuade him to pursue a disability claim, telling him that he is cosmetically unacceptable and his presence traumatizes the other employees, informing him that he unable to do his full work without conducting any process to determine this, and suggesting that he leave whilst ignoring the medical reports that the applicant was fit to work, and finally seeking to negotiate his exit. The applicant was entitled to consider the employment relationship as terminated, which he ultimately did by the time this matter came to trial.
Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 36. See also Ismail v B & B t/a Harvey World Travel Northcliff (2014) 35 ILJ 696 (LC) at paras 27 28.
the Court dealt with a situation where an employee on the evidence was never informed that she had been dismissed, and said: by definition the existence of a dismissal can be established by conduct. An objective assessment of the evidence must be made in order to establish whether the conduct of the employer is such as to establish a termination of the employment contract, be it with or without notice.
Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC) at para 14
Section 186(1)(a): This formulation would appear to contemplate that the employer party to the contract of employment undertakes an action that leads to the termination. In other words, some initiative undertaken by the employer must be established, which has the consequence of terminating the contract, whether or not the employer has given notice of an intention to do so.’
Marneweck v SEESA Ltd (2009) 30 ILJ 2745 (LC) at para 31.
as a matter of principle, an employment contract can be regarded as terminated based on the objective construction of the employer’s conduct which unequivocally repudiates the contract.
Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC) at para 31.
[15] Where the employer conducts itself in such a fashion that has the cause of bringing the employment relationship to an end, it must equally be considered to be a dismissal.[16] the question to answer is whether there were some overt actions by the respondent as employer that were the proximate cause of such termination of employment of the applicant on 1 February 2012. The applicant has the onus to show this. In answering this question, regard must not just be had to what happened on that day, but all the circumstances leading up to the events on that day must also be considered. In short, did the respondent seek to repudiate the employment contract
Probation
JR1303/2014
Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016)
Plane Engineering (PTY) Ltd v Ncobo & others (2014) 35 ILJ 1971 (LAC).
even though less onerous reasons can be accepted for dismissing a probationary employee, the fairness of such reasons still needs to be tested against stipulations of items 8(1) (a)-(h) of the code of Good Practice.
misconduct: reporting late for work
JR1303/2014
Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016)
[12]The sanction of dismissal was unfair because the conduct of the employee persisted for a considerable time reporting late for work, with the applicant not doing anything about it. On its own version the applicant kept giving the applicant verbal counselling regarding the issues of time keeping. If indeed late coming was regarded as a serious offence the applicant ought to have warned the employee about the alleged misconduct and the possible consequences that was likely to follow. If indeed the situation had become unreasonable from the side of the applicant it ought at least to have placed him on terms by issuing a written warning. This is in essence what the Commissioner means when he says the applicant never applied progressive discipline.
misconduct: incitement of violence, acting against her employers best interests, conduct unbecoming an official, and a conflict of interest
JR241/14
Bokoni Platinum Mines (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR241/14) [2016] ZALCJHB 524 (6 October 2016)
Was not as a result of illegal strike.
Dismissal fair
misconduct: tested positive for using marijuana
JR286/15
Diesel Supply and Logistics (Pty) Ltd v Skhosana and Others (JR286/15) [2016] ZALCJHB 525 (14 October 2016)
the arbitrators finding that the applicant had failed to call medical expert evidence, I fail to appreciate, in circumstances where the authenticity of the test and its use in the industry was never seriously disputed by the employees representative, how such a finding can be made. To the extent that the arbitrators finding is based on his intervention when he asked Muller why the employer not been sent to a medical facility, that question had as its purpose the ability for medical experts to test for a whole range of drugs. Given that the integrity of the test administered had not been called into question and that the test itself was capable of testing for the presence of a number of other drugs (which was never disputed) there is no basis on which the arbitrator could reasonably rely on make a finding he did.
misconduct: grossly negligent: drove well over the speed limit,
C420/2015
IMATU obo Cupido v City of Cape Town and Others (C420/2015) [2016] ZALCJHB 421 (2 November 2016)
Dismissal fair
misconduct: deliberate tripping co-employee
J768/15
Minister of Finance v Bredenkamp and Others (J768/15) [2016] ZALCJHB 431 (11 November 2016)
this should be regarded as serious misconduct. This was a deliberate assault by a senior on a subordinate, aggravated by the circumstances in which it took place.
Misconduct: failed and/or refused to comply with a lawful instruction
JR261/13
Ngululu Bulk Carriers (Pty) Limited v SATAWU and Others (JR261/13) [2016] ZALCJHB 440 (29 November 2016)
A wilful refusal to carry out a proper assignment for which the employee was employed for
Second Respondent’s dismissal was fair
Misconduct: Negligence with aggravating circumstances
JR1907/14
Glencore Operations South Africa (Pty) Ltd v NUM obo Mtshwene and Others (JR1907/14) [2016] ZALCJHB 567 (1 December 2016)
Negligence with aggravating circumstances in that you failed to ensure the proper installation of the refractory lining, resulting in the company losing substantially on finance and production…employee is by far the senior employee between the two and was ultimately responsible and liable for the work performed by his subordinates.
Misconduct: defied an instruction by his supervisor to take his lunchbreak at a particular time
JR438/13
Bader SA (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR438/13) [2016] ZALCJHB 550 (20 December 2016)
[16]As I have already said, where an element of dishonesty is attached to a particular act of misconduct (in this case insubordination), it goes to the heart of the employment relationship. The question then in these circumstances is whether the trust element essential for any employment contract to endure, has been irretrievably breached.
misconduct: act of defiance amounting to a refusal to obey an instruction
JR2684/13
Sibanye Gold Ltd (Driefontein Mine) v Commission for Conciliation, Mediation and Arbitration and Others (JR2684/13) [2017] ZALCJHB 191 (1 March 2017)
respondents dismissal was substantively and procedurally fair.
misconduct: contravention of the National Road Traffic Act 93 of 1996 by exceeding the speed limit
JR557/14
Wadeville Secure (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR557/14) [2017] ZALCJHB 85 (3 March 2017)
matter is remitted to the first respondent to be heard de novo
misconduct: refused to carry out those instructions
JR759/12
Mphahlele v Coreslab (JR759/12) [2017] ZALCJHB 130 (12 April 2017)
was at the time sitting with a final written warning for a similar misconduct…order that the dismissal was fair.
misconduct: they went to the house of a fellow employee, intimidated him to join the strike
JR696/15
Bidvest Food Services (Pty) Ltd v CCMA and Others (JR696/15) [2017] ZALCJHB 210 (31 May 2017)
dismissal of the Third Respondents was substantively and procedurally fair.
proof
JS318/13
National Union of Mine Workers obo Shayi and Others v Sishen Iron Ore Company (Pty) Ltd (JS318/13) [2017] ZALCJHB 271 (30 June 2017)
[18] It is trite that in dismissal proceedings, the onus rests with the employees to establish and prove that they were dismissed. On the other hand, the employer has to demonstrate and/or show that the dismissal was fair. In general, this means that the Applicants must prove that the Respondent has taken some initiative to terminate the contract, and that the Respondents action has caused the termination.
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC); See also CWIU v Johnson and Johnson (Pty) Ltd [1997] 9 BLLR 1186 (LC)
misconduct: dishonesty
JR1671/16
Kellogg Company South Africa Proprietary Limited v Food and Allied Workers Union obo Khumalo and Others (JR1671/16) [2017] ZALCJHB 268 (6 July 2017)
The Constitutional Court in the matter of Sidumo & another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC).
In the respect of the absence of dishonesty, the Labour Appeal Court found that the Commissioners statement in this regard baffling. In my view, the Commissioner cannot be faulted for considering the absence of dishonesty a relevant fact in relation to the misconduct. However, the Commissioner was wrong to conclude that relationship of trust may have not been breached. Mr Sidumo was employed to protect the mine valuable property which he did not do. However, this is not the end of the enquiry. It is still necessary to weigh all the relevant factors together in light of the seriousness of the breach.
The absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal.[11] (Own emphasis)
misconduct: dishonesty
DA08/16
Workforce Group v McLintock and Others (DA08/16) [2017] ZALCJHB 272 (1 August 2017)
Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC)
Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38.
It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
misconduct: insubordination
JR967/14
Cashbuild Thohoyandou v Mannde NO and Others (JR967/14) [2017] ZALCJHB 284 (8 August 2017)
Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC)at para 22
Even so, it is however trite that acts of insolence and insubordination do not automatically justify dismissal unless they are serious and wilful
misconduct: misrepresenting qualifications in CV
JR1289/14
LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291; [2017] 12 BLLR 1259 (LC) ; (2017) 38 ILJ 2787 (LC) (8 August 2017)
Employee misrepresenting qualifications in CV commissioners finding that employees dismissal substantively unfair unreasonable award set aside on review employees dismissal determined as having been fair
Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC)
In any event, accepting that such a qualification was not a requirement for the job, this does not detract from the employees dishonesty in misrepresenting that he was a chartered accountant.
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others(2017) 38ILJ881 (LAC)
[30] The false misrepresentation made by the third respondent was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees. It induced employment and when discovered was met with an absence of remorse on the part of the third respondent. The fact that a lengthy period had elapsed since the misrepresentation, during which time the third respondent had rendered long service without disciplinary infraction, while a relevant consideration, does not compel a different result. This is so in that the fact that dishonesty has been concealed for an extended period does not in itself negate the seriousness of the misconduct or justify its different treatment. To find differently would send the wrong message.
misconduct: fighting
JR1756/2015
Arcelor Mittal SA Ltd v Metal and Engineering Industries Bargaining Council and Others (JR1756/2015) [2017] ZALCJHB 295 (11 August 2017)
Ultimately, the evidence clearly shows that the third respondent did everything in his powers to evade a fight. The second respondent seems to have correctly understood the fundament rules of evidence including the principles governing mitigation and probabilities.
misconduct: insubordination
JS752/13
Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017)
Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC) at para 22
. . . [A]cts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The failure by an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to or defiance of the authority of the employer may justify dismissal, provided it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employers lawful authority over him or her.
misconduct: failed to follow safety rules by allowing two employees to put their heads into a class B (high risk) vessel, potentially containing lethal gases,
JR1900/14
Sasol Synfuels v NBCCI and Others (JR1900/14) [2017] ZALCJHB 356 (20 September 2017)
[14] …The only reasonable conclusion to be reached on the evidence is that the third respondent committed the act of misconduct with which he was charged, and that in terms of the applicable policy, dismissal was the appropriate penalty. The third respondent contravened a safety code and endangered the lives of two contractors. The award accordingly stands to be reviewed and set aside.
misconduct: failed to immediately report it to the safety manager
JR2355/14
National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2355/14) [2017] ZALCJHB 359 (21 September 2017)
[22]In considering whether or not dismissal was an appropriate sanction, the arbitrator considered that the rule was introduced as a result of numerous fatalities at the mine and that it was an extraordinary measure taken by the CEO in an attempt to deal with a difficult situation and to prevent the loss of further lives. He found that a tip area that was not barricaded was dangerous as employees could fall into the opening and had the CEO known of the opening of the tip area, he could have intervened immediately and ordered that the area be secured without further delay. The employee was a safety officer and in light of the fatalities at the workplace, he did not act in the best interests of the employer at the time. The arbitrator accepted that the trust relationship has broken down and cannot be resuscitated.
Strike: no hearing
JA36/16
SACCAWU obo Mokebe and Others v Pick ‘n Pay Retailers (JA36/16) [2017] ZALCJHB 345 (26 September 2017)
[52] The union, in the current matter, had obtained a certificate of outcome in terms of s64(1)(a) of the LRA and it had issued a strike notice in terms of s64(1)(b) thereof. This, in my view, rendered it fair and appropriate for the company to hold a disciplinary hearing where individual participation was allowed for primarily two reasons. The first was to ascertain each employees understanding of what the correct time of the commencement of the strike was. And the second was to establish whether he or she was knowingly complicit in the purported scheme to cause damage to the company. As it turns out, the company failed to adhere to the process that it specifically undertook to follow in the disciplinary notice which it issued to employees. This rendered each of the employees dismissals procedurally unfair.
Modise and Others v Steves Spar Blackheath [2000] 5 BLLR 496 (LAC)
The last observation relates to the conclusion that it would have been a pointless and an unnecessary exercise for the employer in G.M. Vincent to afford the strikers a hearing. My difficulty with this conclusion is that this was a case where the union had taken various steps prescribed by the old Act for making a strike legal… Indeed, it appears from the judgement of the industrial court in the same matter that, when the matter was argued in the industrial court, it was the unions case that it (and, a fortiori, the strikers) believed that the strike was legal (see NUMSA V G.M. Vincent Metal Sections (Pty) Ltd (1993) 14 ILJ 1318 (IC) at 1320J-1321A)… In those circumstances I cannot, with respect, see how it could be said that a hearing would have been a pointless and an unnecessary exercise in such a case.
The Court went on to hold that:[10]
The need for the respondent to hear the appellants was arguably even stronger in this case because this was a case where, to the knowledge of the respondent, certain steps had been taken by the union which were obviously aimed at making the strike a legal strike. The respondent should have realised that, because such attempts had been made, the strikers could well have been under the impression that the strike was legal and, that, for that reason, they might have believed that they were entitled to go on strike and even to ignore any calls by the respondent that they return to work. Although the appellants strike was illegal, they should not, in my judgement, be treated in the same way as strikers who simply flouted the Act and made no attempts whatsoever to comply with it. They deserve some sympathy. Workers must be encouraged to comply with the law. To treat them as if they fall into the same category as strikers who go on a strike without any attempt at all to make their strike legal would not be right. It would not encourage unions and workers to make whatever attempts they can to ensure that their strikes are legal.
misconduct: intoxicated on duty
JR790/15
Van der Merwe v Shiba and Others (JR790/15) [2017] ZALCJHB 354 (27 September 2017)
Commissioners may find sanction harsher than the one prescribed in the disciplinary code appropriate when there is evidence justifying deviation from the prescribed sanction. Absent evidence, the commissioners decision that the harsher sanction is appropriate is unreasonable and defective
[7] It is common cause that disciplinary codes are guidelines and not cast in stone. It is further common cause that the third respondent differentiates between dishonesty and gross dishonesty. The former is punishable by a written warning and the latter by dismissal. It is further common cause that the applicant was dismissed for dishonesty. The commissioner was therefore required to determine whether the third respondents conduct of dismissing the applicant for dishonesty was fair. The applicant made himself guilty of dishonesty. The third respondent conceded that aggravating circumstances should exist before a sanction harsher than the one prescribed in its code could be justified. It was submitted on behalf of the third respondent that aggravating circumstances could be inferred from evidence.
Absent aggravating circumstances, the decision that the dishonesty led to an irretrievable breakdown of the employment relationship between the parties is unreasonable. The commissioner erred in finding the sanction of dismissal appropriate. His error had the effect of rendering his decision unreasonable. The application must, in the circumstances, succeed.
misconduct: failed and or refused to undergo a Medical Examination
JR2354/15
Steval Engineering (Pty) Ltd v Mphaphuli N.O, and Others (JR2354/15) [2017] ZALCJHB 358 (27 September 2017)
The commissioner found that the charge was that the applicant did not comply with the respondents instruction when in fact the opposite was true. He concluded that the charge had no basis in law. He added that even if the third respondent had committed the misconduct, the sanction of dismissal would have been inappropriate as the prescribed penalty in terms of the Site Specific Agreement was a final written warning. He found the dismissal substantively unfair.
In Pharmaco Distribution (Pty) Ltd v Lize Elizabeth Weideman[3] it was held that the consent to medical examination in a contract of employment does not constitute justification as contemplated in section 7 (1) of the EEA. The applicant did not establish that the award falls outside the bounds of reasonableness.
misconduct: negligence
JR929/15
Netshisaulu v Commission for Conciliation, Mediation and Arbitration and Others (JR929/15) [2017] ZALCJHB 366 (28 September 2017)
commissioner misconstruing misconduct as gross negligence and upholding sanction of dismissal when employee guilty of ordinary negligence award reviewed and set aside and substituted with an order that dismissal unfair and employee reinstated on a written warning
[33] But in order for this to warrant dismissal, it would have to be determined that the applicant was grossly negligent, because negligence per se does not warrant dismissal[9] (just like insubordination per se and insolence does not[10]). In argument, Mr Ramdaw (who appeared for Eskom) submitted that ordinary negligence warrants dismissal, and undertook to provide me with authorities in support of this proposition. Having studied the list of authorities subsequently submitted by him, I am fortified in my view that only gross (or grave) negligence warrants dismissal.
Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas and Another: MV Stella Tingas 2003 (2) SA 473 (SCA) at para 7.
It follows, I think, that to qualify as gross negligence the conduct in question must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.
Grogan Dismissal (2nd ed) at 246.
To warrant dismissal at first instance, negligence by an employee must be gross. Gross negligence may be said to have occurred if the employee is persistently negligent, or if the act of omission under consideration is particularly serious in itself. While in civil law the term gross negligence has a technical meaning, in employment law it can be taken to mean negligence that is particularly inexcusable.
incapacity: ill health
JR1524/2015
Exarro Coal (Pty) Ltd t.a Grootgeluk Coal Mine v Maduma and Others (JR1524/2015) [2017] ZALCJHB 348; (2017) 38 ILJ 2531 (LC) (29 September 2017)
incapacity ill health cause and nature of lung disease undetermined at time of dismissal failure to determine same affected substantive and procedural fairness of dismissal despite employees inability to perform his current occupation at the time
[11] The arbitrator found that the employer had conceded in the arbitration that even though a post of a buyer was at a higher level (Maduma was employed at level P4 and the position of a buyer was level A3 which was one level higher), Maduma had previously acted in such a position (when he was working for another associated business unit) Maduma contended that he had never been made aware of vacancies available at the employer during the incapacity meetings. However, he believed he could perform the duties of a team assistant (a clerical post situated in the warehouse on the same post level occupied by Maduma at the time) or those of a receiving clerk. He saw no reason why an arrangement could not have been made to transfer him to an associated business unit of the Exarro Company in the same way that he had previously been transferred from another associated company to the applicant.
[16] In dealing with the procedural fairness of the dismissal the arbitrator found, in the absence of obtaining a final medical report, that the incapacity meetings convened by the employer were meaningless and it was merely going through the motions of conducting a proper procedure. As such, the employer had not complied with the code on incapacity hearings which provides that the employees prognosis and the extent to which the employee is capable of performing work should be discussed before dismissal is considered. Consequently, the arbitrator found the dismissal was also procedurally unfair.
General Motors (Pty) Ltd v National Union of Metalworkers of SA on behalf of Ruiters (2015) 36 ILJ 1493 (LAC)
[34]… In IMATU obo Strydom v Witzenberg Municipality & others, this court (per Molemela AJA, as she then was) stated:
[7] I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognized as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee’s working circumstances or duties cannot be adapted. A dismissal would under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.
[8] The aforementioned obligations of the employer as set out in items 10 and 11 of schedule 8 to the LRA are interrelated with similar obligations in the Employment Equity Act 55 of 1998. In their work Employment Equity Law (2001) 7-3 to 7-4, J L Pretorius et al submit that the duty of reasonable accommodation of employees by employers is not confined to the Employment Equity Act but “is a duty that is implied in the concept of unfair discrimination in a general sense” and “is one of the judicial and legislative tools for realising substantive equality”. I agree with this submission. Surely non-compliance with such an important constitutional imperative would not only impact on procedural fairness but on the substantive fairness of the dismissal as well?
[9] I am of the view that the provisions of items 10 and 11 are inextricably tied and thus non-compliance therewith would render a dismissal both procedurally and substantively unfair.’ [2]
misconduct: gross negligence
JR2224/15
Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)
gross negligence for failing to verify that merchandise properly returned before authorising refund
[13]Once it is accepted that the employee was given on-the-job training (or that the commissioners finding to that effect was reasonable), then it seems to me that a finding (implicitly made by the commissioner) that the employee was grossly negligent on 21 February 2015 is also not unreasonable. In effect, the employee was guilty of a dereliction of her duties, such as to qualify as gross negligence.
on the basis of supervening impossibility of performance
JR664/15
Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) [2017] ZALCJHB 371 (10 October 2017)
1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure.
FAWU obo Meyer v Rainbow Chickens [2003] 2 BALR 140 (CCMA)
it was held that the dismissal of a chicken slaughterer who could not perform his duties after his accreditation to slaughter was withdrawn by the Muslim Judicial Council was justified
SA Private Security Workers Union on behalf of Nomavila and Bosasa Operations (Pty) Ltd (2016) 37 ILJ 2172 (CCMA)
[27] I am satisfied that the matter before me involves incapacity through a permanent impossibility of performance as a result of a supervening factor such factor not being caused or created by either the employee or the employer.
1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure.
Making a secret profit at the expense of the employer
JR810/15
NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017)
The South African Law of Evidence Zeffertt and Paizes 2nd Edition at p 48
[13] The Second Respondent was enjoined to apply the civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence. Where the quantum of proof requires a preponderance or balance of probability, it means that the probability of the truth of a particular averment is measured or balanced against the probability of it being untrue.
[14] The evidence was overwhelmingly in favour of the Third Respondents case that the Applicant was guilty of lending money to Magaboya at an exorbitant interest rate.
misconduct: failed to communicate your intended absence
JR993/14
UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017)
[21] The next issue is whether the dismissal of the first respondents was fair.
[22] The applicant submitted that the first respondents were on final written warnings at the time of the offence. It however failed to establish with reference to the record of evidence that the warnings were for a similar offence. The warnings thus have no bearing on whether the dismissal was fair.
[23] In my view, considering the first respondents did attempt to comply with a written rule, it is arguable that they should have received a severe sanction short of dismissal.
misconduct: assault: Self-defence
JR52/15
JDG Trading Pty Ltd t/a Barnetts v Mthukwane N.O. and Others (JR52/15) [2017] ZALCJHB 504 (25 October 2017)
The Third Respondent assaulted a member of public in the Applicants shop. The Second Respondent found that the Third Respondent acted in self-defence. The award set aside as the Second Respondent misapplied the principle of self-defence. However, Self-Defence can still be successfully pleaded in the employment context and should not be equated with a brawl.
[23] I disagree. Self-defence once proven constitutes a basis of exonerating an employee at the work place. It is a complete defence. Such a defence is still applicable in our labour jurisprudence. Exonerating an employee on self-defence but continue finding him guilty for being involved of a brawl negates the very protection of self-defence available to an attacked employee. Regard should be had that if the defence could have been avoided, then such would no longer constitute self-defence but an attack. The requirements of self-defence are trite. I intend not dissect the rest of the requirements that must be proven for self-defence to be sustainable.
[24] In this case I deliberately started the focus on whether or not the Third Respondent exceeded the bounds of self-defence. Obviously to start at this level means I have given, only for purposes of this argument, a benefit to the Third Respondent that Cynthia started the fight. It will come to the fore somewhere in this judgment that such a benefit was also quite generous.
[25] Self-defence can be exceeded and it is on this aspect that I need to find out if the commissioner properly dealt with. It is trite law that where a defender uses more force that is reasonably necessary to repel an attack, the defender would be guilty of assault on the attacker and the defender would not be able to rely on self-defence
Rustenburg Platinum Mines Limited v Mwachanda JR 2283/09, Delivered 10 April 2014 (Wilken AJ)
misconduct: driving at high speed
JR2512/13
Lekoba v Smollan Cape (Pty) Ltd and Others (JR2512/13) [2017] ZALCJHB 453 (5 November 2017)
report generated for 26 June 2013, the vehicle in question was driven at a top speed of 202km/h. Grant-Olivier under extensive cross-examination by Lekoba also explained how the system worked, how data and speed was recorded, and how the devices operated separately from odometers in the vehicle. She testified that the odometer was not relevant for the purposes of speed reading, as the information on the device was generated from the satellite GPS. Dismissal fair.
misconduct: fraudulent conducts relating to leave applications
JR1090/2015
NUM obo Namane v Commission for Conciliation, Mediation and Arbitration and Others (JR1090/2015) [2017] ZALCJHB 455 (6 November 2017)
It is further my determination that the originality of the forms should not have been a determining factor whether the applicant has indeed committed misconduct or not. In fact, in terms of the evidence led, it is clear that the leave forms were requested from a number of employees after it became apparent that the system did not balance as far as leaves are concerned. It is therefore unfair to limit his determination to the applicant when the applicant was not the only employee who had submitted copies of the leave forms.
misconduct: crib notes on her desk under her examination pad
JR435/15
Pick ‘n Pay Retailers (Pty) Ltd v Letsoalo (JR435/15) [2017] ZALCJHB 445 (20 November 2017)
Independent Newspapers (Pty) Ltd v Media Workers Union SA, on behalf of McKay and others (2013) 34 ILJ 143 (LC).
This court, has held on numerous occasions that in the face of dishonesty by an employee, there is very little chance of the trust relationship being rebuilt. Dismissal is general seen as a fair sanction in those circumstances. The arbitration in this case did not consider that aspect of the case before him. That failure makes his finding on sanction so unreasonable that no other arbitrator could have reached the same conclusion. In those circumstances the award must be reviewed and set aside.
[37] The employers decision to dismiss was fair, having regard to the importance of the rule, and all the other factors. And more specifically, the importance of the trust relationship with regard to a person that works in the receiving department of a retail organisation, and this evidence was not disputed by the applicant.
incapacity: ill health
JR534/12
Paraxel International (Pty) Ltd v Chakane N.O. and Others (JR534/12) [2017] ZALCJHB 435; (2018) 39 ILJ 644 (LC) (21 November 2017)
Item 10 and 11 Schedule 8 to the Labour Relations Act
Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others [2007] ZALC 98; [2008] 4 BLLR 356 (LC); (2008) 29 ILJ 1239 at paras 70 -76.
an enquiry to justify an incapacity dismissal may take a few days or years, depending mainly on the prognosis for the employees recovery, whether any adjustments work and whether accommodating the employee becomes an unjustified hardship for the employer.
MTN Service Provider (Pty) Ltd v Matji NO and Others [2007] ZALC 40 at paras 14 15.
It appears from all the evidence that the applicants decision to dismiss her was based not so much on her incapacity as her long and persistent periods of absence from work due to ill-health. That is why the applicant insisted that the enquiry before the first respondent should have been formulated broader than it was to make reference to the habitual and persistent absenteeism of the third respondent. That is not the test. The test is whether the third respondent was at the time of dismissal capable of rendering her services to the applicant. She was never given a chance to prove that she was. I am thus satisfied that the first respondent asked and answered the correct question.
As regards the second issue, there was no evidence before the first respondent that the third respondent had any say in the applicants consideration of alternative positions of a less stressful hue. Whether or not such positions indeed existed is a separate enquiry.
[29] These principles are trite. By now it is reasonable to expect that employers clearly understand the obligations in terms of Items 10 and 11 of the Code. Even though an employer may not be obliged to retain an employee who is not productive, fairness requires that a proper assessment be made of whether that situation has been reached before the employer resorts to dismissal.[12] Such an assessment cannot be undertaken in an arbitrary manner and without properly consulting the employee on possible alternatives.[13]
AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC)
[35] …the court held that there should be a distinction between dismissal for persistent but intermittent absence for ill health and dismissal for prolonged absence owing to long-term illness. In that matter, the employee was dismissed for persistent but intermittent absence for ill health. The court stated that a persistent but intermittent absence for ill health should be treated as analogous to a disciplinary matter capable of being regarded as a dismissal for misconduct as opposed to incapacity. The procedure followed by the employer was found to be fair as it had given the employee warnings to improve his attendance at work; it had given him the opportunity to make representations; it had investigated his claim that his working conditions were the cause of his illness and found that that claim had no substance; and, finally when there was no adequate improvement in the employees attendance record, it had been justified in treating the persistent absences as a sufficient reason for dismissing him.
misconduct: breached the Mine Health and Safety Code
JR2265/14
Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v Commission for Conciliation, Mediation and Arbitration and Others (JR2265/14) [2017] ZALCJHB 447 (1 December 2017)
The Applicant argues that Venters evidence, by virtue of his position as chief safety representative, should be accepted.
poor performances
JA48/15
Damelin (Pty) Ltd v Solidarity obo Parkinson and Others (JA48/15) [2017] ZALAC 6; (2017) 38 ILJ 872 (LAC); [2017] 7 BLLR 672 (LAC) (10 January 2017)
employee dismissed for failing to meet stipulated target court finding that period to meet target, after a warning, was too short or that target was incapable of being achieved. Appeal dismissed with costs; period of some 27 days within which to achieve the reduced target set in that letter, given all that preceded it and taking into account that it was not achieved even with assistance afforded by Damelin head office goes to show that either the period was too short or that the target was incapable of being achieved.
Palace Engineering (Pty) Ltd v Ngcobo and Others (2014) 35 ILJ 1971 (LAC).
Although a senior employee is indeed expected to be able to assess whether he is performing according to standard and accordingly does not need the degree of regulation or training that lower skilled employees require in order to perform their functions, an employer is not absolved from providing such an employee with resources that are essential for the achievement of the required standard or set targets.
misconduct: desertion
JA19/2015
IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017)
[37] Accordingly, despite the employees having been guilty of desertion, and despite the serious consequences for the business credibility of the employer, the sanction of dismissal was inappropriate. Allowing due weight to the effect of their misconduct on the business credibility of the employer, a final written warning would be proportionate to their delinquency. If there had been no other opportunity to be placed, as appears to be the case, the employees would have faced retrenchment.
pornography count
DA6/2015
Sasol Nitro v National Bargaining Council for the Chemical Industry and Others (DA6/2015) [2017] ZALAC 22; [2017] 9 BLLR 883 (LAC); (2017) 38 ILJ 2322 (LAC) (3 May 2017)
[25] The pornography count looms large. Yet the charge, which draws on the text of the disciplinary code paragraph 6.5(c), in my view, despite the way it was relied upon in the proceedings, seems not obviously to be an injunction that covers the keeping of pornography on the laptop. Paragraph 6.5 (l) of the code deals with indecency and accepted community norms and might have been a closer match, but Reddy was not charged with that. Still less was he charged under paragraph 6.5 (n) of the code, which concerns itself with the reputation of Nitro being tarnished. Viewing pornography per se is not a criminal act, unless, of course, it is child pornography, an accusation not made in this case. deplorable as it may be, and moreover, no evidence exists to prove he viewed it instead of doing his job. What was left of the charge, was in, truth, as alluded to above, no more than abusing the laptop for private purposes.
racial remarks towards a fellow employee by referring to him as swartman
JA45/16
SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017)
Employer bore the evidentiary burden in the arbitration proceedings to prove that the language used was objectively derogatory. The test is an objective one – the court must examine the entire context in which the misconduct is alleged to have occurred and decide on a balance of probabilities whether the employee is guilty of such conduct and whether the employer has discharged the onus of proof – Once that is established on the evidence, the burden of proof shifts to the employee to prove the existence of a ground of justification and that the derogatory or racist remark was not made with the intent to demean. Evidence shows that the employee had no reason to denigrate his fellow employee as he did have a need to identify the other employee – a person whose name, rank and division was unknown to him – and he used race as a descriptor in doing so. The employee was charged with making a racial remark by referring to a fellow employee as a swartman when requesting that he moved his vehicle. There is no conceivable reason why race might justifiably have served as an identifier.
Modikwa Mining Personnel Services v Commission for Conciliation Mediation and Arbitration and Others (2013) 34 ILJ 373 (LC).
What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purpose of subjugation, where particular race groups continue to be viewed as other.
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others [2002] 6 BLLR 493 (LAC) at para 38, South African Revenue Services v Kruger [2017] 1 BLLR 8 (CC).
[15] It is close on two decades since the dismantling of the apartheid regime, yet racism remains a key challenge to our democracy. Racism is particularly pervasive in the workplace, where concerned employers have adopted a zero-tolerance approach to racist conduct and the use of racial expressions or epithets which are derogatory by making such misconduct a dismissible offence. Our courts have correspondingly dealt with acts of racism, and the use of racist language in particular, very firmly visiting upon such conduct the sanction of dismissal.
misconduct: gross negligence
JA16/16
South African Medical Association obo Pietz v Department of Health – Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017)
grossly negligent and had acted in a reckless and uncaring manner with regard to the patients; the respondent (the department) did not follow the proper procedure the applicant was given an opportunity to explain his actions to the respondent in a letter dated the 30th of November 2009 which he failed to do.
Substantively fair dismissal
misconduct: racist words
CA6/2016 South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017)
“Julle k****s is almal donnerse ewe onnosel”
Matter resolves around the credibility finding on the credibility of the various factual witnesses; their reliability; and the probabilities
However, where the word kaffir is used, as is the case here, its derogatory connotation is so blatant as to be taken as established. It bears repetition, in this regard, that being called a kaffir is one of the worst insults in the South African context.[13] However, the employer will still bear the onus to prove that the employee uttered the derogatory word/s.
misconduct: gross dishonesty for activating the in-contact service SMS notification on the company’s credit card without informing the employer and also to divert all company SMS notification to his cell phone
JA107/2015
Moen v Qube Systems Proprietary Limited and Others (JA107/2015) [2017] ZALAC 31; [2017] 11 BLLR 1096 (LAC); (2017) 38 ILJ 2712 (LAC) (31 May 2017)
[27] In light of the finding that Brassey AJs order stands to be set aside on the basis that the learned judge applied the incorrect test and that the decision of the arbitrator is not one of which it can be said that a reasonable arbitrator could not have reached on the material placed before him.
[26] Viewed in its totally, the evidence does reveal that the appellant did not notify anyone at first respondent, in particular, Mr Dyson, that he was receiving information about first respondents bank account or that he took steps to rectify the position. But alone this is insufficient to conclude, on the evidence that was placed before the Commissioner, that the result reached, namely that on the charges brought by first respondent, the dismissal of appellant was unreasonable in terms of the proper test for review which must be applied.
First respondent is to pay the appellant compensation in the amount R936 000.00
trust
DA08/16
Workforce Group v McLintock and Others (DA08/16) [2017] ZALAC 49; (2017) 38 ILJ 2517 (LAC) (1 August 2017)
Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC); Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38.
It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
nepotism
PA8/16
Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017)
on account of her conflict of interest/unethical conduct (nepotism) and influencing the recruitment process – substantively unfair.
[97] In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others[15] this Court restated the consistently adopted approach, laid down in the jurisprudence of the Labour Court in Standard Bank SA Ltd v CCMA & others[16] to the effect that it is one of the fundamentals of the employment relationship that the employer should be able to place trust in their employees to discharge their responsibilities dutifully. A breach of this trust in the form of conduct involving dishonesty, as in this case, is one that goes to the heart of the employment relationship and is destructive of it. The sanction of dismissal must be seen as a sensible operational response to risk management in the particular enterprise.[17]Nepotism has a damaging effect on the positive corporate culture and is a potential threat to the morale of other employees. I am satisfied that dismissal is the appropriate sanction in the circumstances of this case.
misconduct: reckless and/or negligent driving that resulted in substantial loss to the employer
JA53/16
Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017)
Held that the employer is required to apply the penalty of dismissal consistently in a precedent-setting system for essentially similar misdemeanours as employees who were sanctioned in the past as the misconduct under consideration. Although the employee contended that the employees faced with same offence were not dismissed, the employer failed to adduce any evidence demonstrating that those employees personal circumstances differed significantly from those of the employee. Employees dismissal substantively unfair. Consequently, the Labour Courts judgment upheld albeit for different reasons appeal dismissed.
misconduct: to ensure that a certain service provider gets the contract
JA59/2016
Central University of Technology v Channer and Others (JA59/2016) [2017] ZALAC 66 (1 November 2017)
[38] As stated at the outset of this discussion, viewed in its totality, the evidence evinces a scheme of quotation rigging perpetrated by the employee to ensure that F van den Heever Dekoratief got the contract to paint the fence. To attain that objective, the employee not only told lies, which were the subject of certain of the charges, but also lied to Ms Prinsloo, for example, about the existence of the third quote which he alleged was probably in the office of Mr Britz, while he knew full well that he had told Mr Van den Heever to put the quote under the door of his office and not in the quotation box.
[39] In light of the seriously dishonest conduct of the employee, the sanction of dismissal was appropriate.
misconduct: strike: derivative misconduct
JA43/16
National Transport Movement (NTM) and Others v Passenger Rail Agency of South Africa Limited (PRASA) (JA43/16) [2017] ZALAC 71; [2018] 2 BLLR 141 (LAC); (2018) 39 ILJ 560 (LAC) (21 November 2017)
Held further that the employers reliance upon the principle of derivative misconduct was misplaced and unjustified. In essence, the striking employees were dismissed not for derivative misconduct but rather for collective misconduct, a notion which is wholly repugnant to our law, not only because it runs counter to the tenets of natural justice but also because it is incompatible with the established principle of innocent until proven guilty.
Consistency in the application of dismissal principle restated – the penalty of dismissal was not applied consistently to all the employees who participated in the strike. This practice is clearly inconsistent with the requirement of consistency as contemplated in item 3(6) of the Code of Good Practice for Dismissals. Appeal upheld Labour Courts judgment set aside employees dismissal procedurally and substantively unfair- employees reinstated.
TAWUSA obo TAU and others v Barplats Mine Limited (Crocodile River Mine) [2009] 30 ILJ 2791 (LC) at para [29].
[29] PRASA accordingly relied upon the concept of derivative misconduct as justification for the dismissals of the striking employees. The principle of derivative misconduct may be relied upon by an employer where there is no direct evidence that the dismissed employees committed the primary misconduct that led to them being charged and dismissed. In the case of derivative misconduct, the employee is liable for a separate and quite distinct offence from the primary misconduct. The derivative misconduct is the employees failure to offer reasonable assistance to an employer to disclose information about individuals who are responsible for the primary misconduct. The employee who is accused of derivative misconduct needs not associated with the primary misconduct
[30] Where the employer relies on derivative misconduct, the employer must prove on a balance of probabilities that the employee committed the misconduct. This would require the employer to prove the following main elements of derivative misconduct namely, the employee knew or must have known about the primary misconduct, but elected, without justification, not to disclose what he or she knew.
Western Platinum Refinery Limited v Hlebela [2015] 36 ILJ 2280 (LAC).
following considerations are relevant to derivative misconduct:
(i) The employee must have had actual knowledge of the wrongdoing, otherwise the blameworthiness cannot be attributed to him or her;
(ii) Non-disclosure must be deliberate;
(iii) The gravity of the non-disclosure must be proportionate to the gravity of the primary misconduct;
(iv) The rank of the employee may affect the gravity of the non-disclosure;
(v) While there is a general duty to disclose wrongdoing, the non-disclosure may also be affected by whether the employee was specifically asked for that information;
(vi) The employee needs not have made common purpose with the perpetrator;
(vii) An employee cannot be guilty of derivative misconduct on the basis of negligently failing to take steps to acquire knowledge of the primary wrongdoing.
NUM and Others v Grogin NO and Another [2010] ILL 25713 (LAC).
[31] As was held in Western Platinum Refinery v Hlebela, it is not sufficient that the employees may possibly know about the primary misconduct. The employer must prove on a balance of probabilities that each and every employee was in possession of information or ought reasonably to have possessed information that could have assisted the employer in its investigations.
NUM and Others v Grogin NO (supra) at para [62].
The test implies that the employees must have been called upon to provide this information. And that [w]ithout prima facie evidence that any of the employees did have information [about the principal misconduct]one cannot conclude that the employees failure to cooperate necessarily meant that they either did have or must have had something to hide
the proposition that the employee must have known about the primary misconduct, as a result of his or her presence at the place where, and time when, the primary misconduct took place, has no application in this case.[46] I accordingly consider PRASAs reliance upon the principle of derivative misconduct to be misplaced and unjustified. In essence, the striking employees were dismissed not for derivative misconduct but rather for collective misconduct, a notion which is wholly repugnant to our law, not only because it runs counter to the tenets of natural justice but also because it is incompatible with the established principle of innocent until proven guilty. This, in my view, renders the employees dismissals both substantively and procedurally unfair.
misconduct: insubordination in refusing to comply with a lawful and reasonable instruction of the employer to clean a forecourt driveway
PA1/2017
National Union of Metalworkers of South Africa (NUMSA) and Others v Blue Pump on Union (Pty) Ltd and Others (PA1/2017) [2017] ZALAC 77 (30 November 2017)
instruction given was reasonable and that the employees had refused to comply with on the basis that it was unreasonable.
Sylvania Metals (Pty) Ltd v Mello N.O and Others [2016] ZALAC 52 at para 16; National Union of Public Service & Allied Workers obo Mani and Others v National Lotteries Board 2014 (3) SA 544 (CC); 2014 (6) BCLR 663 (CC); [2014] 7 BLLR 621 (CC); (2014) 35 ILJ 1885 (CC).
[14] The employees conduct in refusing to comply with the employers reasonable workplace instruction constituted insubordination.[3] They were progressively cautioned that their conduct was serious and were made aware that they risked dismissal if they persisted with their refusal to comply with the instruction given to them. After they had been invited to consult with their trade union and given the opportunity to leave work to do so, they did not alter their stance. This led to a final written warning being issued to them before they were sent home and told to return to work the next shift allocated to them. On their return to work, the employees persisted with their refusal to comply with the instruction. By so doing, their conduct amounted to a serious and wilful breach of their obligation to adhere to and comply with the employers lawful authority
See Grogan Dismissal, Discrimination and Unfair Labour Practices 2 ed (Juta & Co Ltd, Cape Town 2007) at 307; Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J; Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC) at para 22; National Trading Co v Hiazo (1994) 15 ILJ 1304 (LAC); [1994] 12 BLLR 53 (LAC) at 1308H-J.
their conduct amounted to a serious and wilful breach of their obligation to adhere to and comply with the employers lawful authority.
misconduct: driving at 83 km/h in an 80 km/h zone
JR1394/16
Khumalo v National Bargaining Council for the Road Freight Industry and Others (JR1394/16) [2018] ZALCJHB 58 (2 February 2018)
The evidence that served before the arbitrator was that the applicant had infringed a workplace rule, that he had been warned on three previous occasions for the same offence and that a final written warning was in place at the time that he committed the offence for which he was ultimately dismissed. I fail to appreciate how it can be said that in those circumstances, the arbitrators decision to the effect that dismissal was an appropriate sanction
misconduct: serious driving violation
JR1445/14
HRR Schaefer Vervoer (Emds) Bpk v SATAWU obob Moleta and Others (JR1445/14) [2018] ZALCJHB 28 (6 February 2018)
Somyo v Ross Poultry Breeders (Pty) Ltd (1997) 7 BLLR 862 (LAC)
The offence was a serious driving violation, and made more serious by the potential damage to life and valuable property that could have been caused had there been a collision. The courts have held that where the consequences of a single act or omission are particularly serious or where an employee holds a position of trust in which negligence on a single occasion may have had disastrous consequences, dismissal may be justified on the first occasion
misconduct: misrepresented that she was a South African Citizen
JS533/16
Khumalo v University of Johannesburg (JS533/16) [2018] ZALCJHB 31 (6 February 2018)
LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others
misrepresentations made in curriculum vitae or interviews, or an omission to disclose certain pertinent facts in curriculum vitae should be dealt with harshly by the courts, even if the misrepresentations or omissions are discovered after the employment had commenced.
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (2017) 38 ILJ 881 (LAC) at para 26
The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is a sensible operational response to risk management. Obtaining employment on false pretences whether by misrepresenting qualifications, skills, experience or prior work history has been found to justify dismissal, with it stated in Boss Logistics v Phopi and others that if this were not so, a sanction short of dismissal would only serve to reward dishonesty. (Authorities omitted)
misconduct: influence of alcohol, failure to take breathalyser test
JR815/15
Duncanmec (Pty) Ltd v William and Others (JR815/15) [2018] ZALCJHB 34 (8 February 2018)
The arbitrator considered the evidence before him before coming to the conclusion that such an inference(under the influence of alcohol was not supported by the facts before him.
misconduct or incapacity: employee who disrupts its operation by being absent from work for an unreasonable period of time provided the procedure stipulated in Item 10 of Schedule 8
JR839/2011
Bosal Afrika (Pty) Ltd v NUMSA obo Mawelela and Others (JR839/2011) [2018] ZALCJHB 35 (8 February 2018)
The arbitrator found that the applicant should have followed the incapacity procedure as provided for in Item 10 of Schedule 8 of the LRA. As a result, he found that the employees dismissal was both procedurally and substantively unfair. It is this finding that the applicant seeks to challenge.
arbitrator based his award on the question whether the employee was fairly dismissed for incapacity on the grounds of ill health. He found that the employees dismissal for incapacity was procedurally and substantively unfair. In so doing, he misconceived the nature of the enquiry before him.
misconduct: shop steward disruptive behaviour
JR1767/14
South Africa Municipal Workers Union obo Chauke v Moretele Local Municipality and Others (JR1767/14) [2018] ZALCJHB 36 (8 February 2018)
This is a typical case where progressive disciple should have been preferred.
Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC) at para 18.
[18] But the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a no go area for commissioners. A zero tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin. Commissioners should be vigilant and examine the circumstances of each case to ensure that the constitutional right to fair labour practices, more particularly to a dismissal that is fair, is afforded to employees. (Emphasis added).
misconduct: theft
JR633/16
Compass Group Southern Africa (Pty) Ltd v Van der Merwe N.O. and Others (JR633/16) [2018] ZALCJHB 49 (9 February 2018)
Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement [2015] 9 BLLR 887 (LAC) ; Shoprite Checkers (Pty) Ltd v CCMA [2008] 12 BLLR 1211 (LAC)
The employees case is however distinguishable because she was charged and found guilty of essentially theft, concocted a mendacious defence, showed no genuine remorse and occupied a position where trust is a key factor.
De Beers Consolidated Mines Ltd v CCMA & Others [2000] 9 BLLR 995 (LAC); Shoprite Checkers (Pty) Ltd v CCMA & Others [2008] 9 BLLR 838 (LAC)
justifies a strict approach to dishonest conduct in the workplace on the basis of the employers operational requirements.[8] This approach is applicable in this case considering the nature of the applicants business and the fact that a business at risk through persistent pilfering also places in jeopardy the security of employment of all employees.
Miyambo v CCMA & others [2010] 10 ILJ 1017 (LAC)
justifies a strict approach to dishonest conduct in the workplace on the basis of the employers operational requirements.[8
Constructive dismissal
JR15/15
Manzini v South African Local Government Bargaining Council and Others (JR15/15) [2018] ZALCJHB 61 (16 February 2018)
[41] It is trite that a claim of constructive dismissal would be unsustainable in circumstances where flowing from a grievance hearing and outcomes, an employee resigns prior to those outcomes being implemented in order to address the source of the grievance. In this case, the applicants conduct of resigning in circumstances where he had rebuffed efforts to address his grievance or failed to afford the employer an opportunity to implement grievance hearing outcomes in order to address his grievances, cannot lead to a conclusion that the Municipality’s conduct had made working conditions intolerable for him. Added is the conclusion that the applicant clearly resigned in the face of the impending disciplinary hearing.
Jabari v Telkom SA (Pty) Ltd 5 (2006) 27 ILJ 1854 (LC); De Klerk v Cape Union Mart International (Pty) Ltd (2012) 33 ILJ 2887 (LC)
[35] Clearly there is a difficulty with the applicants approach. The first is that the mere that an employee has laid a grievance cannot by all accounts, imply that an employer is not entitled to institute disciplinary proceedings against that employee. Of course, there would be a problem if the disciplinary measures are taken in retaliation for the lodging of a grievance
Old Mutual Group Schemes v Dreyer & Another (1999) 20 ILJ 2030 (LAC) para 18
an employee who has an option of facing a disciplinary enquiry cannot simply resign and claim constructive dismissal
misconduct: Sexual Harassment
JR641/2016
Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others (JR641/2016) [2018] ZALCJHB 72 (27 February 2018)
conduct did not amount to unwanted sexual harassment…depict a love proposal…incident at the safety braai event
29] Item 3 of the 2005 Code deems sexual harassment as a form of unfair discrimination within the ambit of Section 6 of the Employment Equity Act 55 of 1998. Item 4 sets out the test for sexual harassment[5], whilst Item 5 outlines the factors to establish sexual harassment[6].
Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014) [2015] ZALCCT 62 (23 October 2015)
At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often less about the abuse of real economic power, and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor.
And,
By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this Court has characterised it as the most heinous misconduct that plagues a workplace (Authorities omitted)
Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC) at para [20]
Sexual harassment is the most heinous misconduct that plagues a workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self-worth of the employee harassed. The harshness of the wrong is compounded when the victim suffers it at the hands of his/her supervisor. Sexual harassment goes to the root of ones being and must therefore be viewed from the point of view of a victim: how does he/she perceive it, and whether or not the perception is reasonable
misconduct: refused to obey the instruction relating to compliance with a safety rule: o wear the hard-hat at the construction site.
JR991/15
Civilcon (Pty) Ltd v Naidoo N.O. and Others (JR991/15) [2017] ZALCJHB 62 (6 February 2017)
12]It is apparent that the employee in the present matter refused to obey the instruction relating to compliance with a safety rule. The rule concerned everybody’s safety including himself. He, in my view, provided no satisfactory explanation as to why he would not comply with the rule. He continued to disobey the rule despite two warnings given against him. It has also not been disputed that the failure to comply with the safety rule carried with it considerable risk related to the possibility of hard objects hitting the employee on the head. This exposed the applicant to the risk of failing to comply with the safety regulations.
misconduct: employees collectively accountable
JR2560/14
Police and Prisons Civil Rights Union obo Biyela v Safety and Security Sectoral Bargaining Council and Others (JR2560/14) [2017] ZALCJHB 38 (7 February 2017)
holding employees collectively accountable as a group, without having to prove the individual misconduct of each and every member of the group, is not foreign to employment law.[54] I am therefore satisfied that the conclusion of the second respondent to the effect that the individual applicant was indeed involved in the misconduct of soliciting a bribe from the two suspects, was not irregular, would in any event constitute a reasonable outcome, and as such, should be upheld. It follows that the individual applicants dismissal was fair, and the second respondents finding that this was indeed the case must be upheld.
Foschini Group v Maidi and Others (2010) 31 ILJ 1787 (LAC) at para 47.
In Chauke’s case the Labour Appeal Court accepted that this type of matter presents a difficult problem for fair employment practices, and illustrated the problem by posing the following question: ‘Where misconduct necessitating the disciplinary action is proved, but management is unable to pinpoint the perpetrator or perpetrators, in what circumstances will it be permissible to dismiss a group of workers which incontestably included them?’ Cameron JA then postulated two lines of justification for a fair dismissal in such circumstances. The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee ‘has or may reasonably be supposed to have information concerning the guilty, his or her failure to come forward with the information may itself amount to misconduct. The relationship between employer and employee is in its essentials is one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment Failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal’. The learned judge of appeal further held that this derived justification is wide enough ‘to encompass those innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence’.
Western Platinum Refinery Ltd v Hlebela and Others (2015) 36 ILJ 2280 (LAC) at para 8.
The effect of these dicta is to elucidate the principle that an employee bound implicitly by a duty of good faith towards the employer breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. Uncontroversially, and on general principle, a breach of the duty of good faith can justify a dismissal. Non-disclosure of knowledge relevant to misconduct committed by fellow employees is an instance of a breach of the duty of good faith. Importantly, the critical point made by both FAWU v ABIand Leeson Motorsis that a dismissal of an employee is derivatively justified in relation to the primary misconduct committed by unknown others, where an employee, innocent of actual perpetration of misconduct, consciously chooses not to disclose information known to that employee pertinent to the wrongdoing. …Perhaps obvious, but important to stress in relation to the facts of this case, the disclosure of information relevant to the wrongdoing, pursuant to the duty of good faith, ought not be dependent upon a specific request for relevant information; often the wrongdoing per se might not be known to the employer. Mere actual knowledge by an employee should trigger a duty to disclose.
Furthermore, the anterior premise of these considerations is that an employee is a witness to wrongdoing, not a perpetrator. The misconduct lies within the bosom of a general duty of good faith to rat on the wrongdoers, not on culpable participation, even in a lesser degree than other perpetrators. The employee is thus not a person who has made common cause with the perpetrators. A disinclination to disclose the wrongdoing from a sentiment of worker solidarity or some other subjective sentiment of solidarity falling short of common purpose is likely to be a typical explanation for non-disclosure, but is per se not a defence to a charge of a breach of a duty of good faith.
rue Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v Commission for Conciliation, Mediation and Arbitration and Others (2015) 36 ILJ 1375 (LC) at para 46.
What is clear to me is that in the case of ‘team misconduct’ just as in the case of derivative misconduct and common cause purpose there is no need to prove individual guilt. It is sufficient that the employee is a member of the team, a team the members which have individually failed to ensure that the team meets its obligations
Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of SA on behalf of Khanyile and Others (2016) 37 ILJ 2065 (LC) at para 42.
the derivative misconduct the applicants relied upon related, in addition to failing to identify the perpetrators, to a breach of trust arising from the failure to come forward. Either to identify the perpetrators or to exonerate themselves
misconduct: Corruption by a police office
JR2560/14
Police and Prisons Civil Rights Union obo Biyela v Safety and Security Sectoral Bargaining Council and Others (JR2560/14) [2017] ZALCJHB 38 (7 February 2017)
Corruption by a police officer, employed in a position of trust and with a duty to perform his or her functions in the interest of society and in accordance with the fundamental values of the Constitution, is a material factor to be considered in determining the appropriateness of the sanction to be imposed. Not only is it a ‘sensible operational response to risk management’ but it provides a sound reason to justify a finding that the imposition of the sanction of dismissal was fair in the circumstances.
[52]It is untenable for the individual applicant to in essence plead ignorance, considering all that had happened. As I have already said above, it is hard to believe that the individual applicant, on the probabilities, did not know what was happening on 5 April 2011. The circumstances were simply too suspicious and unusual to be ignored or for the individual applicant to legitimately claim ignorance. And added to that, I could find no trace of an explanation by the individual applicant as to what happened to the copper which was left in TZ 16 he drove away in.
Mphigalale v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 1464 (LC) at para 24.
misconduct: racism
JR960/14
Solidarity obo Pio v Department of Public Works: Roads and Transport, North West and Others (JR960/14) [2017] ZALCJHB 50 (7 February 2017)
depiction of Phetos identity in Pios Cellphone as ‘Kaf’,
[38] And so is the word Kaf when used in reference to a black person, at least in South Africa. I say South Africa because this is the only country in the world that has a history of institutionalised separation and racism, was riddled with and still continues to writhe in the grime of the racial slur and the past. Even if one were to take the dictionary meaning of the word Kaf, as chaff in English: worthless things, trash, garbage, trash, chopped hay and straws used as fodder, one still finds a meaning that denigrates, insults, demeans and humiliates, Pheto. In any event, there was no doubt that Pio knew and understood the word Kaf to mean kaffir, as came out from his retort when Pheto called and asked to speak to him[23]. There is no indication of anyone accusing him of using the word kaffir at all at that time. He knew exactly what he was dealing with, and that he had to defend or justify himself for the use of the slur. He knew what the word was and that any black person would have been offended by it….47] The commissioner did deal with this aspect in the award. He accepted that cognisance could be taken that the word Kaf is a slang for kaffir. It is also universally known that the term kaffir is used in South Africa to refer negatively to a black person and is perceived by black people as a highly offensive ethnic slur. Even if it were to be accepted that Pio meant chaff, in my view, it would still have been highly inappropriate to identify your colleague with an invective. Chaff means dirt, and it could easily have been perceived by Pheto as a racist term, given the history of race relations and the continued racial tensions that are prevalent in the country. The commissioner has therefore correctly pointed out that our courts have found that the use of this term was a fair reason for dismissing an employee.
Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75.
at the core of these decisions is the decisive break that the Constitution represent from a past in which racism was institutionalised and legitimised (see S v Makwanyane and another [1995] ZACC 3; 1995 (3) SA 391 (CC)) and that racism in the workplace is not to be tolerated. …What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purposes of subjugation, where particular race groups continue to be viewed as other.
referred with approval to another judgment from this court, Modikwa Mining Personnel Services(2013) 34 ILJ 373 (LC), in which Gabie AJ reviewed a number of decisions by this court in which incidents of racism in the workplace were at issue (see, for example, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and others(2002) 23 ILJ 863 (LAC),Lebowa Platinum Mines Ltd v Hill(1998) 19 ILJ 1112 (LAC)).
Misconduct: Cashier under-ringing
JR1815/14
Pick ‘n Pay Retailers (Pty) v Commission for Conciliation, Meditation and Arbitration and Others (JR1815/14) [2017] ZALCJHB 51 (7 February 2017)
CCMA finds dismissal harsh and reinstate. Code of Good Practice: Dismissal applied. Negligence not necessarily Dishonest.
32] There is no legal basis to support a view that if a court rejects a party’s version on the facts, then there must necessarily and automatically follow a conclusion that that party was dishonest. In any event, the Code of Good Practice provides a guide to arbitrators on what may constitute a serious misconduct of such gravity that it makes a continued employment relationship intolerable. This includes gross dishonesty, wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault and gross insubordination. The Code enjoins commissioners that even if they found the misconduct to be serious, they still cannot conclude that a dismissal sanction is appropriate without further considering the personal circumstances of the employee, the nature of the job and the circumstances of the infringement itself. These the commissioner has taken fully into account in this case and has, in my view, come to a reasonable decision. The Code of Good Practice is mandatory and must be taken into account when a commissioner decides on the sanction.
Misconduct: forklift was driven to the parked truck
JR2088/14
Manganese Metal Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2088/14) [2017] ZALCJHB 45 (14 February 2017)
his dismissal was substantively fair.
sexual harassment
JR2125/13
University of Venda v Maluleke and Others (JR2125/13) [2017] ZALCJHB 72; (2017) 38 ILJ 1376 (LC) (28 February 2017)
he would ensure that she passed the course if she had sexual intercourse (intercourse) with him
Bandat v De Kock and Another (2015) 36 ILJ 979 (LC)
What is clear from the above provisions of the code is that central to the existence of sexual harassment is conduct that must be ‘unwelcome’. If the conduct is not unwelcome, it cannot be sexual harassment. The determination of whether conduct is ‘unwelcome’ is an objective one, because conduct that may be subjectively unwelcome to one person may not be unwelcome to another….How does one then go about in objectively determining whether the kind of conduct as set out in clause 5 of the Code is unwelcome? In my view, the first question that has to be asked is whether the conduct was ever complained about by the employee. This can be done by the perpetrator being informed that the employee considered the conduct to be unwelcome and the perpetrator then being called on to cease the conduct. Or the employee can formally pursue a complaint with more senior management using relevant harassment policies that may be applicable, or raising a grievance.
Motsamai v Everite Building Products (Pty) Ltd [2011] 2 BLLR 144 (LAC)
Sexual harassment is the most heinous conduct that plagues the workplace; not only is it demeaning to the victim, it undermines the dignity, integrity and self worth of the employee harassed. Sexual harassment goes to the root of one’s being and must therefore be viewed from the point of view of a victim; how does he/she perceive it, and whether or not the perception is reasonable.
Makoti v Jesuit Refugee Service SA (2012) 33 ILJ 1706 (LC)
The applicant’s testimony of the specific acts of sexually aggressive behaviour of the director aimed at her was relatively detailed, plausible and could not be directly contradicted by the respondent. Understandably, the respondent sought to suggest that her account ought not to be believed because she never raised any grievance about it at the time. It is true that the applicant’s failure to make an issue of a deeply felt grievance at the time when it was suffered calls for a plausible explanation, which must be carefully assessed.
Mokoena and Another v Garden Art Ltd and Another (2008) 29 ILJ 1196 (LC)
Sexual attention becomes sexual harassment if the behaviour is persisted in, although a single incident of harassment may constitute sexual harassment, the recipient has made it clear that the behaviour is considered offensive and the perpetrator should have known that the behaviour would be regarded as unacceptable.
Gaga v Anglo Platinum Ltd and Others (2012) 33 ILJ 329 (LAC)
if not the initial behaviour, then, at the very least, the persistence therein is unacceptable
Bandat (supra) at para 81
actual dynamic and nature of the relationship between the perpetrator and the complainant.
Gaga (supra) at para 42.
The failure by the complainant to take formal steps against the appellant should be construed likewise in the light of the personal and power dynamic in the relationship, which probably operated to inhibit the complainant
Gaga (supra) at para 42.
It would be unfair to the employer were the appellant to be allowed to avoid liability for sexual harassment on the basis of the ignorance of his victim of the steps required to be taken in the policy and her hesitation in taking them. The complainant’s evidence looked at as a whole suggests that she was uncertain about how to deal with the situation. Her conspicuous vacillation was an understandable response in a youthful and junior employee. She was placed in the invidious position of being compelled to balance her sexual dignity and integrity with her duty to respect her superior; which obligation no doubt was appreciably compromised by his behaviour.
F v Minister of Safety and Security and another(Institute for Security Studies, Institute for Accountability in Southern Africa Trust and Trustees of the Women’s Legal Centre as Amici Curiae) (2012) 33 ILJ 93 (CC) at para 37.
“‘Sexual violence and the threat of sexual violence goes to the core of women’s subordination in society. It is the single greatest threat to the self-determination of South African women.’ . . . South Africa also has a duty under international law to prohibit all gender-based discrimination that has the effect or purpose of impairing the enjoyment by women of fundamental rights and freedoms and to take reasonable and appropriate measures to prevent the violation of those rights.”‘
dishonesty
JR695/13
Bapela v Public Health and Social Development Sectoral Bargaining Council and Others (JR695/13) [2018] ZALCJHB 89 (2 March 2018)
transgressions have an element of dishonesty which goes to the core of the employment relationship, which is trust.
Impala Platinum Ltd v Jansen and others [2017] 4 BLLR 325 (LAC) at paras 19 to 20.
[19] As held in G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and others,[8] an “employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer.[9] The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely.[10] Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.[11] In a recent and as yet to be reported judgment of Schwartz v Sasol Polymers and others,[12] this Court dealt with the case of an employee found guilty of conflict of interest in that his wife had received gifts from several of his employer’s service providers. Unlike in this matter, the commissioner there found the employee’s dismissal to be substantively unfair. In setting aside the award, this Court (upholding the Labour Court judgment on substantive fairness) held that the dishonest nature of the employee’s misconduct was of such a nature as to make continued employment intolerable. It further held that it would be fundamentally unfair and unjust to expect an employer to retain in its workplace a senior employee who has shown himself to be guilty of dishonesty.[13] The court also took the view that if the employee was remorseful, the nature of the dishonesty was such that these mitigating factors could not help in mitigating the harsh sanction of dismissal. In this respect, the court held that:
“While I agree . . . that the lack of remorse shown by appellant is relevant, even if genuine remorse had been shown by him, this would only have been a factor to be considered in his favour in determining sanction and would not have barred his dismissal, remorseful or not, having regard to the seriousness of the misconduct committed.
gross negligence
JR1709/14
Bridgestone SA (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR1709/14) [2018] ZALCJHB 113 (15 March 2018)
Whether misconduct relating to gross negligence did not warrant dismissal
[21] …There is no basis for the arbitrator to trivialize the seriousness of a misconduct relating to gross negligence and in particular that which was committed by the employee. The employee was a classifier with managerial responsibility for final inspection of the applicants products, he failed to exercise the standard of care and skill that was reasonably expected of an employee with his degree of skill and experience and his conduct resulted in financial loss to the applicant. In addition, it was not in dispute that his conduct and/or omission was serious in itself. The applicant was entitled to discipline him because he owes a duty of care to it (the applicant), its clients and his own colleagues.
[22] The arbitrator put more emphasis on the employees long-term service and the fact that his previous warning was no longer valid. He failed to appreciate the nature and the importance of the rule breached; the consistency of application of the disciplinary rule and sanction; and aggravating factors. The applicant led relevant evidence that the employee was aware of the procedure to be taken to prevent the damage caused; his negligent conduct resulted in the applicants financial loss; he failed to report the incident immediately; and he failed to display remorse, to appreciate or to acknowledge his wrongdoing at the disciplinary enquiry and at the arbitration proceedings. Instead, he shifted the blame to the previous shift and to Mr. Ntseke. It is apparent that the arbitrator did not take the above factors into consideration before arriving at the finding that the sanction of dismissal was too harsh.
Facebook account: racist remarks
JR2219/14
Dagane v SSSBC and Others (JR2219/14) [2018] ZALCJHB 114 (16 March 2018)
“…Well commit a genocide on them. I hate whites.
31]The Commissioner carefully considered whether it was hearsay evidence. She found that it was. She then reasonably assessed whether it was nevertheless admissible in terms of section 3(c) of the Law of Evidence Amendment Act, 16 of 1988 which conferred on her a discretion to admit hearsay evidence if it is in her opinion that it was in the interest of justice to admit it. She did this by evaluating the matter in line with the factors set out in section 3(c) of the Law of Evidence Amendment Act. She took into account that the nature of the proceedings was an arbitration which implored her to deal with the substantive merits of the dispute with the minimum of legal formalities. This is in line with section 138(1) of the LRA
Dutch Reformed Church Vergesig Johannesburg Congregation and another v Sooknunan t/a Glory Divine World Ministries [2012] 3 All SA 322 ; 2012 (6) SA 201 (GSJ); H v W 2013 (5) BCLR 554 (GSJ) (at paragraphs (10) (23).
if this was the case the applicant would have distanced himself from making the remarks, which he did not do.
balance of probabilities that the applicant was the author of the offensive and racist remarks; that he had posted them; that he had breached a rule of conduct within the workplace; and that his remarks on Facebook offended the Constitution as they were discriminatory and constituted hate speech. This is a reasonable conclusion in relation to the totality of evidence that was before her.
Hotz and Others v University of Cape Town [2016] 4 All SA 723 (SCA); 2017 (2) SA 485 (SCA) paras [67] [69].
The issue of the content of the slogans, whether painted on the War Memorial and the bus stop or worn on a T-shirt, as well as statements, such as those made by the third appellant in the confrontation with a student, is a delicate one. Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard. It was rightly said in Mamabolo that:
freedom to speak one’s mind is now an inherent quality of the type of society contemplated by the Constitution as a whole and is specifically promoted by the freedoms of conscience, expression, assembly, association and political participation protected by ss 15 – 19 of the Bill of Rights.
But in guaranteeing freedom of speech the Constitution also places limits upon its exercise. Where it goes beyond a passionate expression of feelings and views and becomes the advocacy of hatred based on race or ethnicity and constituting incitement to cause harm, it oversteps those limits and loses its constitutional protection. In Islamic Unity Convention Langa CJ explained the reason for this:
Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional. Implicit in its provisions is an acknowledgment that certain expression does not deserve constitutional protection because, among other things, it has the potential to impinge adversely on the dignity of others and cause harm. Our Constitution is founded on the principles of dignity, equal worth and freedom, and these objectives should be given effect to.
A court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to be characterised as hate speech, even if it has overtones of race or ethnicity. The message on Mr Magidas T-shirt said unequivocally to anyone who was more than a metre or two away that they should kill all whites. The reaction to that message by people who saw it, as communicated to Mr Ganger, was that this was an incitement to violence against white people. The fact that Mr Magida sought to explain away the slogan and suggest that it said something other than what it clearly appeared to say, is itself a clear indication that he recognised its racist and hostile nature. Whether it in fact bore a tiny letter s before the word KILL is neither here nor there. The vast majority of people who saw it would not have ventured closer to ascertain whether, imperceptibly to normal eyesight, the message was something other than it appeared to be. They would have taken it at face value as a message being conveyed by the wearer that all white people should be killed. There was no context that would have served to ameliorate that message. It was advocacy of hatred based on race alone and it constituted incitement to harm whites. It was not speech protected by s 16(1) of the Constitution.
misconduct: deliberate abuse of company property
JR1810/15
Palabora Copper (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1810/15) [2018] ZALCJHB 138 (27 March 2018)
The review application regarding the substitution of the dismissal sanction for a final written warning valid for 6 months is upheld
Misconduct
Inconsistency
JR583/14
Government Printing Works v Mathala N.O. and Others (JR583/14) [2016] ZALCJHB 358 (31 August 2016)
he parity principle requires that there must be flexibility; various cases explored. In consistency matters, it must be expected that there will(i)always be some inherent variances that(ii)are random,(iii)affecting different employees, and (iv) will determine different assessment and outcomes. It is certain though, that the gravity of the offence is the grandest factor causing the variances, and must always be scrutinised with greater care.
Misconduct
Inconsistency
JR2946/2010, J494/13
Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)
Absa Bank Ltd v Naidu and Others [2015] 1 BLLR 1 (LAC) at paras 42-56.
[42] Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as I say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. In my view, the fact that another employee committed a similar transgression in the past and was not dismissed cannot, and should not, be taken to grant a licence to every other employee, willy-nilly, to commit serious misdemeanours, especially of a dishonest nature, towards their employer on the belief that they would not be dismissed. It is well accepted in civilised society that two wrongs can never make a right. The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate, there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances.
Misconduct
failed to disclose vital facts
JR2946/2010, J494/13
Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)
Absa Bank Ltd v Naidu and Others [2015] 1 BLLR 1 (LAC) at paras 42-56.
[52] Of course, it is accepted that not every misconduct offence involving dishonesty warrants a sanction of dismissal. There are varying degrees of dishonesty and, therefore, each case is to be determined on the basis of its own facts on whether a decision to dismiss an offending employee is a reasonable one. Generally, however, a sanction of dismissal is justifiable and, indeed, warranted where dishonesty involved is of a gross nature. In Toyota SA Motors (Pty) Ltd v Radebe and others, this Court held as follows: Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty. It appears to me that the commissioner did not appreciate this fundamental point. I hold that the first respondents length of service in the circumstances of this case was of no relevance and could not provide, and should not have provided, any mitigation for misconduct of such a serious nature as gross dishonesty. I am not saying that there can be no sufficient mitigating factors in cases of dishonesty nor am I saying dismissal is always an appropriate sanction for misconduct involving dishonesty. In my judgment the moment dishonesty is accepted in a particular case as being of such a serious degree as to be described as gross, then dismissal is an appropriate and fair sanction.
[53] In De Beers Consolidated Mines Ltd, above, the Court further pointed out that [t]he seriousness of dishonesty ie whether it can be stigmatised as gross or not depends not only, or even mainly, on the act of dishonesty itself but on the way in which it impacts on the employers business. In the present instance, considering the nature of the appellants business, there can be no doubt, in my view, that Ms Naidus dishonesty severely adversely impacted on the business.
[55] On the issue of breakdown in trust relationship, occasioned by an employee’s dishonest misconduct, this Court (per Davis JA) in Shoprite Checkers (Pty) Ltd v CCMA and others, stated the following: [T]his Court has consistently followed an approach, laid out early in the jurisprudence of the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 (LC) at paragraphs 3841 where Tip AJ said: It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
Misconduct
Procedural fairness
JS 805/04
Khanyile and Others v Air Chefs (Pty) Ltd (JS 805/04) [2015] ZALCJHB 238 (4 August 2015)
Johnson & Johnson (1999) 20 ILJ 89 (LAC) at para [28]
the employer was not at fault and did all it could, from its side, to achieve consensus seeking, the purpose of the section would also have been achieved.
Misconduct: failed to check the veracity of this information concerning himself or deliberately tampered with it to advantage himself
JA25/2017
Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018)
In either event, his conduct was dismissible.
[10] It is a rule of logic, as was stated in R v Blom 1939 AD 188 at 202-3, that, when reasoning by inference, the inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn. A court is required to select that inference which is the more plausible or natural one from those that present themselves (AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A).)
Misconduct: Insubordination
PA4/2017
Malamlela v South African Local Government Bargaining Council (PA4/2017) [2018] ZALAC 25; (2018) 39 ILJ 2454 (LAC) (6 June 2018)
dismissed after having been found guilty of insubordination in deliberately refusing to comply with an instruction
National Union of Public Service & Allied Workers and Others v National Lotteries Board 2014 (3) SA 544 (CC) at para 213, minority judgment per Dambuza AJ; Lynx Geosystems SA v CCMA and Others (2010) JOL 26424 (LC); Transport and General Worker Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC) at 880-1.
…would be transferred to another sub-directorate…[29] Insubordination involves a persistent, wilful and serious challenge to, or defiance of the employer’s authority; a calculated challenge to the employers authority, which is deliberate or intentional.
Motor Industry Staff Association & another v Silverton Spraypainters & Panelbeaters and Others (2013) 34 ILJ 1440 (LAC); and SA Municipal Workers Union and Others v Ethekwini Municipality and Others [2016] 12 BLLR 1208 (LAC).
sanction of dismissal was justified when her defiance flowed from conflict with her immediate superiors, destroying the trust relationship.
NUMSA obo Mkhwanazi v Ellies Holdings (Pty) Ltd (2012) 33 ILJ 516 (BCA); Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd (2013) 34 ILJ 1440 (LAC) at para 47.
An appropriate degree of mutual trust, respect and courtesy is to be shown by both employer and employee towards the other in the context of an employment relationship.
Mqhayi v Van Leer SA (Pty) Ltd 1984 (5) ILJ 179 (IC) at 182A-D.
Our courts have traditionally viewed respect and obedience as implied duties of an employee under the employment contract
National Union of Public Service & Allied Workers obo Mani and Others v National Lotteries Board 2014 (3) SA 544 (CC); 2014 (6) BCLR 663 (CC); [2014] 7 BLLR 621 (CC); (2014) 35 ILJ 1885 (CC) at para 57 (minority judgment of Froneman J).
with the outdated reliance on obedience intended to refer to the employees duty to act in good faith and adhere to the lawful and reasonable instructions of the employer
Misconduct: misled the employer and deliberately concealed the existence of the gift card which had a credit balance due to the employer
PA3/17
Nel v Construction Education and Training Authority and Others (PA3/17) [2018] ZALAC 16 (10 July 2018)
in a misconduct hearing one is not required to satisfy the criminal law requirements of wrongdoing- All that is required is to establish if an employee committed misconduct and the seriousness thereof.
deliberately concealed the existence of the gift card which had a credit balance due to the employer and made herself guilty of dishonest conduct.
Fraud: Fraud consists in unlawfully making, with intent to defraud, a misrepresentation which causes actual prejudice or which is potentially prejudicial to another. (S v Gardener and Another 2011 (1) SACR 570 (SCA) para 29)
However, in misconduct hearings, one is not required to satisfy the criminal law requirements of any wrongdoing. All that is required is to establish if the employee committed misconduct, whether the misconduct was one of dishonest conduct complained of or something else, and the seriousness thereof. Labels are totally irrelevant, particularly to a criminal charge that is for the criminal courts to deal with.
Misconduct: long period of service
PA3/17
Nel v Construction Education and Training Authority and Others (PA3/17) [2018] ZALAC 16 (10 July 2018)
Toyota SA Motors (Pty) Ltd v Radebe and Others (2000) 21 ILJ 340 (LAC) at 344 paras 15-16.
[15]..Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty. It appears to me that the commissioner did not appreciate this fundamental point.
[16] I hold that the first respondent’s length of service in the circumstances of this case was of no relevance and could not provide, and should not have provided, any mitigation for misconduct of such a serious nature as gross dishonesty. I am not saying that there can be no sufficient mitigating factors in cases of dishonesty nor am I saying dismissal is always an appropriate sanction for misconduct involving dishonesty. In my judgment the moment dishonesty is accepted in a particular case as being of such a serious degree as to be described as gross, then dismissal is an appropriate and fair sanction.
derivative misconduct: From these circumstances, the inference can be drawn that it is improbable that each and every one of them could not have acquired actual knowledge of the misconduct perpetrated, more especially because the misconduct, as described earlier, was so spectacular.
DA16/2016
National Union of Metalworkers of South Africa (NUMSA) obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (DA16/2016) [2018] ZALAC 19; [2018] 10 BLLR 961 (LAC); (2018) 39 ILJ 2226 (LAC); 2018 (6) SA 240 (LAC) (17 July 2018)
Chauke and Others v Lee Service Station CC t/s Leeson Motors (1998) 19 ILJ 1441 (LAC).
[27] The case presents a difficult problem of fair employment practice. Where misconduct necessitating disciplinary action is proved, but management is unable to pinpoint the perpetrator or perpetrators, in what circumstances will it be permissible to dismiss a group of workers which incontestably includes them? (This species of misconduct is not to be conflated with criminal doctrine of common purpose which addresses the notion that persons who identify with a course of action by their acts of association with its perpetration are equally guilty of the deed perpetrated.)
[28] Two different kinds of justification may be advanced for such a dismissal. In Brassey & others The New Labour Law (1987) at 93-5, the situation is posed where one of only two workers is known to be planning major and irreversible destructive action, but management is unable to pinpoint which. Brassey suggests that, if all avenues of investigation have been exhausted, the employer may be entitled to dismiss both.
[29] Such a case involves the dismissal of an indisputably innocent worker. It posits a justification on operational grounds, namely that action is necessary to save the life of the enterprise. That must be distinguished from the second category, where the justification advanced is not operational. It is misconduct. And no innocent workers are involved: management’s rationale is that it has sufficient grounds for inferring that the whole group is responsible for or involved in the misconduct.
[30] The present case illustrates the second category. Management did not advance an operational rationale for the dismissal. It charged the 20 workers in the paint-shop and cleaning and polishing sections with misconduct – malicious damage to property – and concluded that they had all been guilty of it. Was this unfair?
[31] In the second category, two lines of justification for a fair dismissal may be postulated. The first is that a worker in the group which includes the perpetrators may be under a duty to assist management in bringing the guilty to book. Where a worker has or may reasonably be supposed to have information concerning the guilty, his or her failure to come forward with the information may itself amount to misconduct. The relationship between employer and employee is in its essentials one of trust and confidence, and, even at common law, conduct clearly inconsistent with that essential warranted termination of employment (Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (A) at 26D-E). Failure to assist an employer in bringing the guilty to book violates this duty and may itself justify dismissal.
[32] This rationale was suggested, without being decided, in Food & Allied Workers Union & others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) (FAWU v ABI). There a large group of workers had assaulted a ‘scab’ driver, leaving him severely injured. The company was unable to prove which of those present at the workplace at the time actually perpetrated the assault. All those who had clocked in and who were thus in the vicinity of the incident when it occurred were charged with the assault. None came forward at the workplace hearings or in the Industrial Court to affirm their innocence or to volunteer any evidence about the perpetrators. Nugent J, sitting with assessors John and Satchwell, suggested at 1063B that:
‘In the field of industrial relations, it may be that policy considerations require more of an employee than that he merely remained passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action.’
[33] This approach involves a derived justification, stemming from an employee’s failure to offer reasonable assistance in the detection of those actually responsible for the misconduct. Though the dismissal is designed to target the perpetrators of the original misconduct, the justification is wide enough to encompass those innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence.
[34] In FAWU v ABI, the court held that, on an application of evidentiary principles, the failure by any of the workers concerned to give evidence, either in the workplace hearings or in the Industrial Court, justified the inference that all those present at the workplace on that day ‘either participated in the assault or lent it their support’ (at 1064B-C). There were other inferences compatible with the evidence. But the inference of involvement was the most likely since (at 1064E):
‘This is pre-eminently a case in which, had one or more of the appellants had an innocent explanation, they would have tendered it, and in my view their failure to do so must be weighed in the balance against them.’
[35] On the same basis, the court rejected the unattested suggestion that the appellants may have declined to come forward because of intimidation or from a sense of ‘collegiality’ (at 1064E-F). The court concluded, in effect from the absence of evidentiary self-absolution, that it was ‘probable that all the appellants were indeed present when the assault took place and either participated therein or lent their support to it’ (at 1064H). (underlining supplied)
[22] The notion of derivative misconduct was again addressed by Revelas AJA in Foschini Group v Maidi (Foschini)[9] esp at [47] where the Labour Appeal Court (LAC) endorsed the decision in Chauke without further comment on the concept.[10] Then in Western Platinum Refinery Ltd v Hlebela and Others (Hlebela),[11] the LAC again addressed the notion.[12] At paragraph [8], with reference to the cited passages in Chauke, it was stated that:
Several important aspects of the dicta require qualification. Important to appreciate is that no new category of misconduct was created by judicial fiat. The effect of these dicta is to elucidate the principle that an employee, bound implicitly by a duty of good faith towards the employer breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. And, uncontroversially, and on general principle, a breach of the duty of good faith can justify dismissal. Nondisclosure of knowledge relevant to misconduct committed by fellow employees is an instance of a breach of the duty of good faith. Importantly the critical point made by both FAWU and Leeson Motors is that a dismissal of an employee is derivatively justified in relation to the primary misconduct committed by unknown others, where an employee, innocent of actual perpetration of misconduct, consciously chooses not to disclose information known to that employee pertinent to the wrongdoing. (Underlining supplied)
derivative misconduct is to succinctly label a species of misconduct evidencing a breach by an employee of the duty of good faith comprising a refusal to disclose information relevant to harm being perpetrated by other persons against an employer’s interests. Accordingly, by reason of such omission, the culpability of the actual perpetrators of particular misconduct, is fairly attributed to them too.
misrepresentation and failure to act in the best interest of the employer thereby breaching her fiduciary duty
JA65/2017
RACEY LUCILLE ROSCHER and INDUSTRIAL DEVELOPMENT CORPORATION (JA65/2017) [2018] ZALAC 20; (2018) 39 ILJ 2489 (LAC) (19 July 2018)
employer contending that employee failed to disclose a negative report that warned against the funding of the film project…Her attitude reflected a lack of concern or insight about the possibility that her misrepresentations and non-disclosure had significant potential to cause IDC reputational and financial prejudice.
misconduct: misrepresenting information regarding the grade of coal which resulted in loss of revenue and reputational damage
JA59/2017
Malapalane v Glencore Operations South Africa (Pty) Ltd (Goedevonden Colliery) and Others (JA59/2017) [2018] ZALAC 22; (2018) 39 ILJ 2467 (LAC) (15 August 2018)
[23] By the appellants own admission he was well experienced and a perfect person for the job. He worked in laboratories in different capacities since 2006. The system of graduated discipline, which Ms Sithole says she invoked in the quest to assist him to produce the reproducibility target set, came to naught. All that he ought to have done was to inform Ms Sithole of the correct test results of his laboratory so that the coal produced could be directed to a customer prepared to accept the coal of that quality. Instead, he opted to deceitfully provide incorrect information on the results. The undisputed evidence, that his misconduct resulted in approximately R250 million loss in revenue to Glencore and concomitant reputational damage, cannot be downplayed. On the whole, I am of the view, that the sanction of dismissal is appropriate in the circumstances of this case.
misconduct: unauthorised possession, concealing products which were found after search located in several places
PA5/17
Qalinga v Commission for Conciliation Mediation and Arbitration and Others (PA5/17) [2018] ZALAC 32 (17 October 2018)
[18] he control of the employer over the stock is compromised by such conduct. On the facts adduced, it is incorrect to suggest that the company had unhindered access to the stock simply because it was still on company premises. It was established that there was no business reason for the stock, on that scale, to be in the store, moreover, concealed, and as such out of reach.
misconduct: defying employer reasonable instruction
JA32/2017
TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA32/2017) [2018] ZALAC 36 (17 October 2018)
Old LAC decision in Acrylic Products (Pty) Ltd v CWIU and Another [1997] 4 BLLR 370 (LAC).
[19] Therefore, defiance of authority can be proven by a single act of defiance.
Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) where a managerial employee defied an instruction to cease advising and representing workers in disciplinary matters and in response to such instructions dared his superiors to try their luck enforcing the instruction.
There is no necessity for high drama and physical posturing to be present.
Scoble, Law of Master and Servant in South Africa, Butterworth, Durban (1956) p145.
The employer prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled insubordination and addresses operational requirements of the organisation that ensure that managerial paralysis does not occur.
incapacity- refusal of security clearance
JA40/17
Solidarity and Another v Armaments Corporation of South Africa (Sco) Ltd and Others (JA40/17) [2018] ZALAC 39 (27 November 2018)
It follows that, at the time of issuing the letter of termination, the incapacity had not yet been determined to be of a permanent nature that warranted Mr Jouberts dismissal.
Workplace Law John Grogan- 12th Ed, 2017, ch 14-p 287.
incapacity need not arise from illness or injury. Employees may be dismissed for incapacity arising from any condition that prevents them from performing their work. In other words, incapacity may give rise to a species of impossibility of performance.
National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others (2011) 32 ILJ 1618 (SCA) at 1623 para 12.
While ordinary principles of contract permit a contracting party to terminate the contract if the other party becomes unable to perform, that is not the end of the matter in the case of employment. The question that still remains in such cases is whether it was fair in the circumstances for the employer to exercise that election. In making that assessment the fact that the employee is not at fault is clearly a consideration that might and should properly be brought to account.
As correctly found by the Court a quo Mr Jouberts inability to perform his services, due to the legal impediment imposed by s37 of the Defence Act and Armscors corresponding employment policies, falls squarely within the ambit of a dismissal based on capacity. However, this is not the end of the enquiry…The difficulty with this case is that PSRB never reviewed the decision of the Intelligence Division which refused Mr Joubert all grades of security clearance and, worse, the reason(s) for the refusal of all the grades of security clearance remains unexplained…In my view, if the final determination has not been made, then the substantive reason for the dismissal under section 37(2) has not been determined
misconduct: gross negligence
JR1436/15
National Education Health and Allied Workers Union obo Mogorosi v Commission for Conciliation, Mediation and Arbitration and Others (JR1436/15) [2018] ZALCJHB 149 (18 April 2018)
what constitutes gross negligence
Department of Co-Operative Governance, Human Settlements and Traditional Affairs, Limpopo Province and Another v Seopela N.O and Others (JR 226 / 2012) [2015] ZALCJHB 22 (4 February 2015) at para 40
Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (SCA) at para 7
. it is not consciousness of risk-taking that distinguishes gross negligence from ordinary negligence. . If consciously taking a risk is reasonable there will be no negligence at all. If a person foresees the risk of harm but acts, or fails to act, in the unreasonable belief that he or she will be able to avoid the danger or that for some other reason it will not eventuate, the conduct in question may amount to ordinary negligence or it may amount to gross negligence (or recklessness in the wide sense) depending on the circumstances. . even in the absence of conscious risk-taking, conduct may depart so radically from the standard of the reasonable person as to amount to gross negligence . It follows that whether there is conscious risk-taking or not, it is necessary in each case to determine whether the deviation from what is reasonable is so marked as to justify it being condemned as gross . Dicta in modern judgments, although sometimes more appropriate in respect of dolus eventualis, similarly reflect the extreme nature of the negligence required to constitute gross negligence. Some examples are: ‘no consideration whatever to the consequences of his acts’ (Central South African Railways v Adlington & Co 1906 TS 964 at 973); ‘a total disregard of duty’ (Rosenthal v Marks 1944 TPD 172 at 180); ‘nalatigheid van ‘n baie ernstige aard’ or ”n besondere ho graad van nalatigheid’ (S v Smith en Andere 1973 (3) SA 217 (T) at 219A – B); ‘ordinary negligence of an aggravated form which falls short of wilfulness’ (Bickle v Joint Ministers of Law and Order 1980 (2) SA 764 (R) at 770C); ‘an entire failure to give consideration to the consequences of one’s actions’ (S v Dhlamini 1988 (2) SA 302 (A) at 308D). It follows, I think, that to qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care.
misconduct: dishonesty and attempted bribery
JR1205/15
Harmony Goldmine Company Limited v Raffee N.O. and Others (JR1205/15) [2018] ZALCJHB 169; (2018) 39 ILJ 2017 (LC) (8 May 2018)
To my mind, the compensation was offered within the context of negotiations, a normal turn of events in terms of the African norms and tradition of conflict resolution as confirmed by the expert witnesses.
misconduct: intimidation of sub-contractors”
JR2578/14
WBHO Civil Construction (Pty) Ltd v Hlatshwayo N.O. and Others (JR2578/14) [2018] ZALCJHB 176 (10 May 2018)
Although the misconduct of the individual respondents was serious, there are material mitigating factors in their favour. To begin with, as reasonably (not necessarily correctly) found by the commissioner: (i) it was inappropriate for the shift cancelling instruction to have been issued to the shop steward and it was bound to miscarry; (ii) the rationale for the instruction was without merit and the decision to cancel the shift was mala fide; and (iii) confusion reigned supreme on the Saturday. Each of these factors is compelling.
Incapacity: poor performance
JR1556/17
Prestige Cosmetics Group (Pty) Ltd v Ceda NO and Others (JR1556/17) [2018] ZALCJHB 230 (20 June 2018)
The applicants witness led extensive evidence on the performance review sessions that were conducted with the third and fourth respondents and the nature and content of those sessions. This evidence was not disputed by the third and fourth respondents. Despite that, the arbitrator found that the third and fourth respondents had been unfairly dismissed because no hearing held. This finding is fundamentally inconsistent with the undisputed evidence and with the principle that in cases of alleged poor performance, a disciplinary-type hearing is not appropriate. Further, the applicant led extensive evidence, which was also undisputed, on the performance targets set for the third and fourth respondents and their failure to meet those targets. Evidence was also led of the extensive training on the applicants product range that was afforded to the third and fourth respondents. The third and fourth respondents were subjected to at least three performance review sessions in order to determine the reasons for their failure to meet the required targets. Guidance and counselling were offered but despite these efforts, the targets were not met.
misconduct: theft of the cables
J440/17
Delmas Coal (Pty) Limited v Commission for Conciliation Mediation and Arbitration and Others (J440/17) [2018] ZALCJHB 233 (26 June 2018)
close to the mine shortly after the other vehicle was seen leaving the mine, that the third respondent and Blessing were responsible for the theft of the cables, that it is possible to enter and exit the mine without an access card even though this was not permitted by the mine, that the third respondent ought to have been on a fatigue shift and not anywhere near the mine at the time. An holistic evaluation of all of the evidence points only toward the undeniable conclusion that the third respondent was guilty of the misconduct with which he was charged.
the fine line between offences related to insolence and insubordination…no proof of an instruction having been issued. Clearly as stated in Palluci, that should not have been the end of the enquiry, in that the standing principle is that insubordination can be present even in the absence of a refusal to obey an instruction, where it is found that the disrespectful conduct complained of, posed a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority.
JR1345/14
Supreme Poultry (Pty) Ltd v Mokgethi and Others (JR1345/14) [2018] ZALCJHB 325 (13 September 2018)
Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC) ; (2015) 36 ILJ 1511 (LAC)
[19] It is clear from this finding that the Labour Court failed to appreciate that the refusal to carry out an instruction is not the only basis upon which to found a charge of insubordination. The offence of insubordination in the workplace has, in this regard, been described by our courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employers authority. Whereas in some cases defiance of an instruction may indicate a challenge to the authority of the employer, this is not so in every case. Insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority. (My emphasis)
Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
[17] Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employers lawful authority. It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employers authority even where an instruction has not been given.
[18] This Court in Palluci Home Depot (Pty) Ltd v Herskowitz and Others, discussed the fine line between insubordination and insolence, with the latter being conduct that is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employers authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The sanction of dismissal is reserved for instances of gross insolence and gross insubordination or the wilful flouting of the instructions of the employer. (footnotes and citations omitted)
[20] …Wooltru, which emphasises the importance of distinguishing insubordination from insolence simply because they are different offences. Wooltru equates the offence of insolence with conduct which is offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or behaviour), insulting or contemptuous, and insubordination with resistance to or defiance of authority; disobedience, and refusal to obey an order of a superior. Wooltru makes it clear that although an employee can be both insolent and insubordinate at the same time, he or she can be insolent without necessarily being insubordinate. Notably, the Court in Wooltru held that a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority. Insubordination it observed:
can manifest itself in the refusal to obey a reasonable and lawful command or in the challenge (or resistance) to or defiance of (see especially The Shorter Oxford Dictionary above) the authority of the employer. It is of course required that insubordination must be deliberate (wilful) and serious (above). This is not to say contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious). One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are definitely not the same kind of offence. (footnotes omitted)
And,
[22] As demonstrated, there is a fine line between insubordination and insolence, and insolence may very well become insubordination where there is an outright challenge to the employers authority. However acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. A failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employers lawful authority over him or her. Thus, unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.(footnotes omitted)
trust relationship had broken down
JR1345/14
Supreme Poultry (Pty) Ltd v Mokgethi and Others (JR1345/14) [2018] ZALCJHB 325 (13 September 2018)
The legal position now is that is that it must be implied from the gravity of the misconduct that the trust relationship had broken down
Edcon Limited v Pillemer NO and others [2010] 1 BLLR 1 (SCA).
Impala Platinum Ltd v Jansen [2017] 4 BLLR 325; (2017) ILJ 896 (LAC)
The legal position now is that is that it must be implied from the gravity of the misconduct that the trust relationship had broken down
wearing of a union t-shirt
JS427/15
National Union of Metalworkers of South Africa obo Its Members in the employ of the Respondent v Transnet SOC Ltd (JS427/15) [2018] ZALCJHB 352; [2019] 2 BLLR 172 (LC); (2019) 40 ILJ 583 (LC) (31 October 2018)
[30] To the extent that s 5 (2)(c)(vi) proscribes an employer from prejudicing an employee on account of the exercise of any rights conferred by the LRA, the wearing of a union t-shirt constitutes a lawful activity under the LRA. This is particularly so in so far as the wearing of a t-shirt is an associative act and s 4 specifically protects an employee’s right to freedom of association by joining trade unions and participating in its lawful activities. On this basis, the union t-shirt ban is also an infringement of s 5 (2) (c) (vi) and is invalid.
honesty
JR 1620/15
Moeketsi v Transnet Bargaining Council (JR 1620/15) [2018] ZALCJHB 398 (5 December 2018)
LAC in Impala Platinum Ltd v Jansen and Others,[(2017) 38 ILJ 896 (LAC) at para 19] referring to G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others with approval
going on leave after he was told that his application for leave was declined
JR180/2017
Travalgar Property Management v Bakshi and Others (JR180/2017) [2019] ZALCJHB 3 (11 January 2019)
[44] In summary: the arbitrator considered the fact that the employee had leave credits but was prepared to take unpaid leave, that he went on leave against the Applicants orders and that his absence disrupted the Applicants operations. On the other hand, the employees absence was not inordinate, he had to take his ailing father to India, the disruption of the Applicants operations had to be juxtaposed with the employees personal circumstances and in view of the employees unfortunate and unplanned personal circumstances, the instruction not to go on leave was unreasonable and callous, wherefore dismissal was not an appropriate sanction as a written or final written warning would have sufficed.
Strike related misconduct carrying dangerous weapons
DA18/2017
Pailprint (Pty) Ltd v Lyster N.O and Others (DA18/2017) [2019] ZALAC 43; (2019) 40 ILJ 2047 (LAC); [2019] 10 BLLR 1139 (LAC) (13 June 2019)
Within the context of the nature of the strike violence committed, the seriousness of this breach was overlooked by the arbitrator.
[19] an employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is a sensible operational response to risk management. (Emphasis added)
Negligence
JA4/18
EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC 57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August 2019)
Dismissal was an appropriate sanction in the circumstances.
[19] The requirements for a dismissal based on negligence are that the employee failed to exercise the standard of care that can reasonably be expected of him through conduct that caused loss or potential loss to the employer.
[20] The evidence establishes that Danney was at least negligent. He wrongfully distributed valuable intellectual property of one of the appellants main clients to an acquaintance. Before sending the second e-mail, he downloaded a volume licence key. As the team leader working daily with software applications, he was required to observe a high standard of care in dealing with the intellectual property under his control. His conduct could have caused reputational harm to the appellant in that Wesbank might reasonably have concluded that its intellectual property was not in safe hands.
Killing a person
PA10/2017
South African Police Service v Magwaxaza and Others (PA10/2017) [2019] ZALAC 66; [2020] 2 BLLR 151 (LAC); (2020) 41 ILJ 408 (LAC) (5 November 2019)
[28] At his disciplinary hearing the employee, who admitted fatally wounding the deceased, maintained that he was acting in self-defence after perceiving that the deceased, who, on his version, had confronted and reminded him of what had happened at the ceremony earlier, was about to stab him with an object which he, subsequently, thought was a knife. According to the employee he also feared being attacked by others at that stage, even though he only saw the deceased.
the sanction of dismissal was appropriate and fair.
Desertion
JR1269/2014
Nchaupa v Tshayana NO and Others (JR1269/2014) [2018] ZALCJHB 250 (12 July 2018)
Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others (2013) 34 ILJ 2266 (LC) at para 21
held that the real issue underlying substantive fairness in dismissals related to desertion is whether the employee had advanced satisfactory justification for his or her extended unauthorised absence. Thus, the element of intention becomes a secondary issue.
[29]…On the contrary, it appears that the hearing and the decision on sanction were predetermined, thus making the dismissal procedurally unfair.
safety
JR1288/12
Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v NUM obo Stigling and Others (JR1288/12) [2018] ZALCJHB 260 (15 August 2018)
[20] It is evident that the arbitrator failed to appreciate the nature and importance of the rule that the employees did not comply with; the potential consequences of nonadherence to the rule; the fact that the employees were well aware of the rule and had elected not to comply with it, the nature of the employees duties as well as the fact that the employees did not show any contrition but instead defended their conduct by claiming that they did not receive practical training.
Conflict of Interest Policy in that she shortlisted her son for a job interview.
JR2049/15
Jijana v Commission for Conciliation, Mediation and Arbitration and Others (JR2049/15) [2018] ZALCJHB 268 (28 August 2018)
12.6 A significant factor with the applicants evidence was that despite being found guilty of breaching the policy, she did not deem her conduct as being dishonest. Any HR practitioner involved in recruitment processes should know, without being asked or without even any specific rules in place, that a recusal from the process would be appropriate where there is a clear , let alone a potential conflict of interest.
discharge of duties: ‘good cause shown’
J34/2017
Nyamane v MEC: Free State Department of Health (J34/2017) [2018] ZALCJHB 455; [2019] 12 BLLR 1371 (LC) (31 August 2018)
(b) If such an officer who is deemed to have been so discharged, reports for duty at any time after the expiry of the period referred to in paragraph (a), the relevant executing authority may, on good cause shown and notwithstanding anything to the contrary contained in any law, approve the reinstatement of that officer in the public service in his or her former or any other post or position, and in such a case the period of his or her absence from official duty shall be deemed to be absence on vacation leave without pay or leave on such other conditions as the said authority may determine.
[20] In a situation where a court assesses good cause it is generally expected for a party to show good cause by (a) giving a reasonable explanation of his default; (b) showing that he or she is bona fide in his or her quest; (c) he or she has a bona fide claim or defence and some prospects of success. I am of a view that when an executing authority assesses good cause he or she must properly consider all the relevant circumstances. Should it be shown that he or she failed to consider all the relevant circumstances, then he or she would have failed to meet the statutory obligation and thus his or her decision thereafter would be incapacitated by the constitutional principle of legality or rationality.
[30] It is in this context that the requirement of good cause referred to in s 14 (2) must be read. This would ordinarily mean that unless the employer, having regard to the full conspectus of relevant facts and circumstances, is satisfied that continued employment relationship has been rendered intolerable by the employees conduct, the employer should as a general rule approve the reinstatement of the employee.
De Villiers v Head of Department: Education, Western Cape, found persuasion in the reasoning of Davis J and Allie J in the matter of De Villiers v Minister of Education Western Cape Province and another
[30] It is in this context that the requirement of good cause referred to in s 14 (2) must be read. This would ordinarily mean that unless the employer, having regard to the full conspectus of relevant facts and circumstances, is satisfied that continued employment relationship has been rendered intolerable by the employees conduct, the employer should as a general rule approve the reinstatement of the employee….[22] My brothers reading of the high court judgment he relied on is that it is not required that an employee, who bears the onus to show good cause, to show that the refusal to reinstate would amount to an unfair dismissal. It does seem to me that Davis J and Allie J also found persuasion in other High Court judgments, which suggested that a deemed discharge should be treated the same way as dismissal for misconduct, thus Schedule 8 of the LRA must be applied.
assault
JR1657/14
Netswera v Commission for Conciliation, Mediation and Arbitration and Others (JR1657/14) [2019] ZALCJHB 64 (2 March 2019)
[24] The Second Respondent was to determine who started the assault and whether there was provocation.[11] In so doing, I find that he considered the evidence before him in totality[12] when he found that the Applicant assaulted Mr Raser the in Mr Metherells office and that he was not provoked. The evidence before him was that Mr Raseruthe did not assault the Applicant in Mr Metherells office.
final written warning
JR1163/16
Kock v Commission for Conciliation, Mediation and Arbitration and Others (JR1163/16) [2019] ZALCJHB 41; (2019) 40 ILJ 1625 (LC); [2019] 7 BLLR 703 (LC) (5 March 2019)
final written warning for insubordination final written warning never challenged warning must stand and cannot be challenged in later unfair dismissal proceedings
Misconduct final written warning for directly related offence consequences considered dismissal based on final written warning fair
[38] … The final written warning was current and binding at the time of the disciplinary proceedings that led to the applicants dismissal. And finally, the final written warning was never challenged, either by way of an internal process, or by way of an unfair labour practice referral to the CCMA.
[40] Therefore, the clear difference in the nature of the dispute, where it comes to an unfair dismissal dispute and an unfair labour practice dispute, has a consequence. This consequence is that each has its own distinct dispute resolution process.[17] It follows that an unfair dismissal dispute must be pursued as such, and an unfair labour practice dispute must also be pursued as such. It cannot be legitimately contended that when an unfair dismissal dispute is pursued by way of a referral to the CCMA, it would also by implication include a challenge of an earlier final written warning, even if that final written warning may have a bearing on the dismissal. The final written warning must be specifically challenged as an unfair labour practice. This must be done by a proper referral to conciliation served on the employer, followed an unsuccessful conciliation at the CCMA.
National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others (2015) 36 ILJ 363 (CC) at para 47. See also Mphahlele v Ephraim Mogale Municipality (2018) 39 ILJ 879 (LC) at para 8.
In determining the objectives of s 191, none of its provisions can be ignored. They must all be taken into account. That includes the requirement in s 191(3) that the employee must satisfy the council that a copy of the referral has been served ‘on the employer’. The general purpose of s 191 provides the background against which the specific purpose of s 191(3) must be understood. The subsection ensures that the employer party to a dismissal or unfair labour practice dispute is informed of the referral. The obvious objective is to enable the employer to participate in the conciliation proceedings, and, if they fail, to gird itself for the conflict that may follow.
Subroyen v Telkom (SA) Ltd (2001) 22 ILJ 2509 (CCMA) at 2521C-D.
The law in respect of the right of an employee to challenge prior warnings on the basis that these warnings are used in assessing a proper and fitting sanction is clear. An employee may raise the question of the fairness of these previous warnings at a subsequent tribunal hearing only if he or she challenged the fairness of these warnings at the time
[45] It is not unusual that an employee receives a final written warning, which is then challenged to the CCMA, and that employee is subsequently dismissed, which dismissal is also pursued to the CCMA. As a matter of practice, these two separate disputes may well be consolidated at arbitration stage, especially where the final written warning has a direct impact on the later dismissal. But the fact remains that there is a distinct and separate referral of the final written warning as an unfair labour practice, which is always required.
[49] The only enquiry an arbitrator when dealing with an unfair dismissal dispute is competent to make, where it comes to a pre-existing unchallenged final written warning, is limited to determining whether the final written warning was indeed issued to the employee, the employee was aware of it, whether it concerns related misconduct to that which the employee was dismissed for, and finally if it is still binding. For example, if the evidence shows that the employee was never issued with the final written warning, then it can hardly be said that the final written warning can be taken into account as the last chance being afforded to the employee to remedy his or her behaviour.[27] Another example where the final written warning may not lead to dismissal is where the warning had expired by the time the further misconduct had taken place.[28] Evidence in this respect thus does not serve to contradict the validity or fairness of the final written warning. It serves, in short, to decide if the employee is actually on a last chance because of it.
[60] The Court in Transnet Freight Rail v Transnet Bargaining Council and Others[(2011) 32 ILJ 1766 (LC) at para 42 43. See also Builders Trade Depot v Commission for Conciliation, Mediation and Arbitration and Others (2012) 33 ILJ 1154 (LC) at paras 45 46] specifically dealt with the very issue of the consequences of a final written warning, and said:
Usually, the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable. . I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal.
And in Gcwensha v Commission for Conciliation, Mediation and Arbitration and Others[(2006) 27 ILJ 927 (LAC) at para 32] the Court held:
I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal.
insubordination versus insolence
JR2637/16
Sibanda v Pretorius N.O and Others (JR2637/16) [2019] ZALCJHB 84 (4 April 2019)
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC)
LAC had an opportunity to address the issue of insubordination versus insolence. The court per Kathree-Setiloane AJA stated the following:
“It is clear from this finding that the Labour Court failed to appreciate that the refusal to carry out an instruction is not the only basis upon which to found a charge of insubordination. The offence of insubordination in the workplace has, in this regard, been described by our courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority. Whereas in some cases defiance of an instruction may indicate a challenge to the authority of the employer, this is not so in every case. Insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority.[14]
CCAWUSA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC).
In characterising the first respondent’s conduct as ‘insolence’, the Labour Court relied upon the decision of Wooltru, which emphasises the importance of distinguishing insubordination from insolence simply because they are different offences. Wooltru equates the offence of insolence with conduct which is offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or behaviour), insulting or contemptuous, and insubordination with ‘resistance to or defiance of authority; disobedience, and refusal to obey an order of a superior’. Wooltru makes it clear that, although an employee can be both insolent and insubordinate at the same time, he or she can be insolent without necessarily being insubordinate.
[27] The Court continued:
“As demonstrated, there is a fine line between insubordination and insolence, and insolence may very well become insubordination where there is an outright challenge to the employer’s authority. However acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. A failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her.”[16]
[44] Therefore Palluci is distinguishable on the facts from the instant case in that apart from the lack of provocation, in the instant matter, the applicant’s conduct as recorded above was found to have amounted to a clear repudiation of Lomax’s authority
non-renewal fixed term contract: criminal record
JR1834/17
Njikelana v Kruger N.O and Others (JR1834/17) [2019] ZALCJHB 88; (2019) 40 ILJ 2380 (LC) (7 May 2019)
[15] The commissioner further found that the applicant failed to prove that, despite the fact that she did not disclose her criminal record, she had a reasonable expectation for the renewal of her fixed term contract or permanent appointment. As a result, the commissioner dismissed the applicants claim.
Independent Municipal And Allied Trade Union and Another v City of Johannesburg Metropolitan Municipality and Others [2014] 6 BLLR 545 (LAC) at para 34.
When assessing whether an expectation is reasonable all the surrounding facts and circumstances should be considered including the terms of the contract of employment, promises made by the employer regardless of contractual terms which gainsay what the employer promised and the general conduct of the parties.
[28] The commissioner correctly found on the evidence before him that it was difficult to comprehend how it could be expected of the third respondent to renew or appoint the applicant given that she did not only fail to disclose her criminal record, but also denied its existence.
sleeping at the workplace during working hours
JR1359/1
Nature’s Garden (Pty) Ltd v Matumba N.O and Others (JR1359/15) [2019] ZALCJHB 118 (17 May 2019)
[16] … Proper consideration of the mitigating factors would have most likely revealed that the third respondent, to a certain extent, was found sleeping during the time set aside for regaining body heat in the canteen. Secondly, that the third respondent was not feeling well and Shibiri was aware of this. In the presence of mitigation factors which the disciplinary chairperson did not make any effort to consider, together with the totality of facts placed before the second respondent, his decision in the award cannot be found to be unreasonable.
principle of disciplinary consistency
JR1359/1
Nature’s Garden (Pty) Ltd v Matumba N.O and Others (JR1359/15) [2019] ZALCJHB 118 (17 May 2019)
SACCAWU and Others v Irvin & Johnson [1999] 8 BLLR 741 (LAC).
. In my view too great an emphasis is quite frequently sought to be placed on to the principle of disciplinary consistency, also called the parity principle. (as to which see e.g. Grogan, Workplace Law, fourth ed. p.145 and Le Roux & Van Niekerk, The South African Law of Unfair Dismissal, p.110). There is really no separate principle involved. Consistency is simply an element of disciplinary fairness (The Dismissal of Strikers, MSM Brassey (1990) 11 ILJ 213 at 229). Every employee must be measured by the same standards (Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Others (1991) 12 ILJ 806 (LAC) at 813 HI). Discipline must not be capricious. It is really the perception of bias inherent in selective discipline which makes it unfair. Where, however, one is faced with a large number of offending employees, the best that one can hope for is reasonable consistency. Some inconsistency is the price to be paid for flexibility, which requires the exercise of a discretion in each individual case. If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the page 21 of 25 disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy. (As was the case in Henred Fruehauf Trailers v National Union of Metalworkers of SA & Others, (1992) 13 ILJ 593 (LAC) at 599 H 601B; National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd, 1994 15 ILJ 1257 (A) at 1264). Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.[2]
[9] The position of the third respondent conspicuously carries distinguishable features as compared to that of Msindo and Ngobese. What is critical around the concept of inconsistency is that it is unfair that like and like are not treated alike[3]. Although the two were dismissed for the same misconduct as the third respondent, it remains undisputed that the third respondent did not appeal the dismissal sanction.
he went home during working hours
JR725/17
Medi Logistics (Pty) Ltd v Ntsoane N.O and Others (JR725/17) [2019] ZALCJHB 107 (22 May 2019)
1. The arbitration award is reviewed and set aside and replaced with an order that De Wet be compensated for the two remaining months in the contract of employment, that is, June and July 2016; and
a final written warning leaves the employer with little choice but to dismiss them
JR2158/17
Sekgotho and Another v Commission for Conciliation Mediation and Arbitration and Others (JR2158/17) [2019] ZALCJHB 138 (12 June 2019)
Transnet Freight Rail v Transnet Bargaining Council and Others (2011) 32 ILJ 1766 (LC) at para 38.
the Labour Court further concluded that the presence of a valid final written warning at the time of the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature, and that the principles of progressive discipline required such a re-offending employee usually to be considered irredeemable.
poor performance: sales targets
JR2454/17
Moneyline Financial Services (Pty) Ltd v Chakane NO and Others (JR2454/17) [2019] ZALCJHB 156 (19 June 2019)
Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others [2007] ZALC 66; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) at para 25.
In order to find that an employee is guilty of poor performance and consider dismissal as an appropriate sanction for such conduct, the employer is required to prove that the employee did not meet existing and known performance standards; that the failure to meet the expected standard of performance is serious; and that the employee was given sufficient training, guidance, support, time or counselling to improve his or her performance but could not perform in terms of the expected standards. Furthermore, the employer should be able to demonstrate that the failure to meet the standard of performance required is due to the employees inability to do so and not due to factors that are outside the employees control. (Emphasis added)
The respondent employees had genuine concerns that were outside their control and could have been managed with the assistance from the applicant. Clearly, the commissioner correctly found that the applicant failed to explore alternative measures short of dismissal, like training. It follows that the applicant failed to show that the dismissal of the respondent employees was an appropriate sanction.
Section 36 of the General Law Amendment Act: possession of stolen property
JR1235/16
POPCRU obo Makhetle v Safety and Security Sectoral Bargaining Council and Others (JR1235/16) [2019] ZALCJHB 244; (2020) 41 ILJ 265 (LC) (18 September 2019)
when a suspect denies possession, he cannot offer an explanation for possession as an alternative defence once possession is successfully proven.
Section 36: Any person who is found in possession of any goods, other than stock or produce as defined in section one of the Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.
37 Absence of a reasonable cause for believing goods properly acquired
(1) (a) Any person who in any manner, otherwise than at a public sale, acquires or receives into his or her possession from any other person stolen goods, other than stock or produce as defined in section 1 of the Stock Theft Act, 1959, without having reasonable cause for believing at the time of such acquisition or receipt that such goods are the property of the person from whom he or she receives them or that such person has been duly authorised by the owner thereof to deal with or dispose of them, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of receiving stolen property knowing it to have been stolen except insofar as the imposition of any such penalty may be compulsory.
Disclosure of reason for leaving previous employment
JR158/17
Intercape Ferreira Mainliner (Pty) Ltd v Mcwade and Others (JR158/17) [2019] ZALCJHB 274; (2020) 41 ILJ 208 (LC); [2020] 2 BLLR 199 (LC) (18 September 2019)
Mr. van As on the employees behalf, that the settlement agreement had the consequence that the employee had no contractual duty to disclose the circumstances surrounding the termination of his employment with Cargo Carriers, since he voluntarily resigned and was never found guilty of any misconduct. In essence, the employees case was that he had nothing to disclose, and that it was never proven that anything he did disclose was false. I have some difficulty with this approach, based as it is on the contractual principles of non-disclosure and misrepresentation by silence or omission. We are not dealing with a contractual dispute the issue in the present instance is ultimately one of ethics. For this reason, cases such as Absa Bank Ltd v Fouche 2003 (1) SA 176 (SCA), (which concerned the relationship of a banker and client) are useful to the extent that they fix the test for the lawfulness of a non-contractual non-disclosure as one premised on what would be mutually recognised by honest men in the circumstances (see paragraph 5 of the judgment). As Lagrange J put it in Galetsitoe [2017] 7 BLLR 690 (LC), it is not unreasonable to infer that a person applying for a senior position should realise that the nature of his or her relationship with a former employer is a material consideration for a prospective new employer and could affect his or her employment prospects (at paragraph 11).
Corrective discipline: disclosing confidential information regarding a possible retrenchment
JR1775/17
Thebe Investment Corporation (Pty) Ltd v Moni N.O and Others (JR1775/17) [2019] ZALCJHB 245 (20 September 2019)
[41] In Theewaterskloof Municipality v SALGBC and Others,[(2010) 31 ILJ 2475 (LC) at para 37.] quoted with approval by the LAC in Sylvania Metals (Pty) Ltd v Mello N.O. and Others,[(JA83/2015) [2016] ZALAC 52 (22 November 2016) at para 27. Unreported.]
where this Court recognised that the general principle is whether the conduct of the employee is incompatible with the trust and confidence necessary for the continuation of the employment relationship; and that where an employee has been afforded an opportunity to correct his or her behaviour and nevertheless persists in taking a confrontational course there can be very little room for the notion of corrective discipline.
discipline an employee for conduct that is not work related
JR30/17
Edcon Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273; (2020) 41 ILJ 195 (LC); [2020] 2 BLLR 186 (LC) (11 October 2019)
“listening to these fucking stupid monkeys running our country”
[21] The rights as mentioned above do not however extend, inter alia, to advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm. Ms Cantamessa accordingly enjoyed the freedom of expression which included freedom of the press and other media as well as freedom to receive or impart information and ideas, provided her posting did not extend to advocating hatred based on race which constitutes incitement to cause harm. She enjoyed the freedom to criticise government of the day where she felt it erred in its administrative manoeuvring. She however did not have the right to resort to racial slurs to vent her anger. Her conduct amounted to advocating hatred based on race which constitutes incitement to racial disharmony at the workplace and in the general public. Her misconduct was serious in nature, was caused by a senior personnel of Edon who had even previously been a manager and it had the potential of seriously harming Edcons business. The derogatory terms used manifested a deep-rooted racism which has no place in a democratic society as said in Custance v SA Local Government Bargaining Council and Others.[16] The more than 20 years of experience Ms Cantamessa had with a clean record were overweighed by the aggravating factors. Dismissal was an appropriate sanction, in the circumstances. There is nothing problematic in the treatment of co-perpetrators differently, depending, for instance, on the extent of their participation to such misconduct, as Edcon did in the present matter. The applicability of the parity principle is not to the exclusion of prevailing different circumstances of the offending employees.
fabricating an affidavit that did not exist together with Wolmarans and Van Deventer, she had clearly defeated and obstructed the administration of justice.
JR2211/12
Wessels v General Public Service Sectoral Bargaining Council and Others (JR2211/12) [2019] ZALCJHB 361 (19 December 2019)
South African Police Service v Magwaxaza and Others
where it was held that the true enquiry had to be about determining, in a manner which was not unduly formalistic, whether the employees dismissal was fair, taking into account the allegations made against the employee and the standard of conduct required of him or her.
Zuma v Democratic Alliance [2014] 4 All SA 35 (SCA) at para 35; Kalil NO v Manguang Metro Municipality 2014 (5) SA 123 (SCA), para 30
[31] In conclusion, it needs to the restated that one of the fundamental principles prosecutors are held to is to operate with transparency and accountability. Furthermore, where, as was in this case, the legality of the actions taken by prosecutors was at stake, it was crucial for the applicant to neither be coy nor to play fast and loose with the truth, and to take the Court into her confidence, and fully explain the facts and circumstances in relation to the recreated affidavit, so that an informed decision could be taken by the Magistrate in the interests of administration of justice[11]. The applicant failed miserably on this score.
Incompatibility
JA53/18
Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (JA53/18) [2020] ZALAC 4; [2020] 6 BLLR 549 (LAC); (2020) 41 ILJ 1360 (LAC) (11 February 2020)
Wright v St Marys Hospital (1992) 13 ILJ 987 (IC); SA Quilt Manufacturers (Pty) Ltd v Radebe (1994) 15 ILJ 115 (LAC) at 124.
[39] Incompatibility involves the inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees.[2] There has been some difference of opinion in the past about whether incompatibility is an operational requirements or an incapacity issue. The prevailing view is that incompatibility is a species of incapacity because it impacts on work performance. If an employee is unable to maintain an appropriate standard of relationship with his or her peers, subordinates and superiors, as reasonably required by the employer, such failure or inability may constitute a substantively fair reason for dismissal. Procedural fairness in incompatibility cases requires the employer to inform the employee of the conduct allegedly causing the disharmony, to identify the relationship affected by it and to propose remedial action to remove the incompatibility. The employee should be given a reasonable opportunity to consider the allegations and proposed action, to reply thereto and if appropriate to remove the cause for disharmony. The employer must then establish whether the employee is responsible for or has contributed substantially to irresolvable disharmony to the extent that the relationship of trust and confidence can no longer be maintained.[3]
inconsistency
JA140/2018
Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17; [2020] 9 BLLR 908 (LAC); (2020) 41 ILJ 2135 (LAC) (18 May 2020)
[23] The basis for the second respondents finding of inconsistency of discipline was not based on an error conducted at the disciplinary hearing of Ms Maseko. But, in any event, that she was acquitted cannot form the basis by which the finding of inconsistency of discipline can come to the aid of the other employees.
SACCAWU & others v Irvin Johnson Limited [2008] BLLR 869 (LAC)
If a chairperson conscientiously and honestly, but incorrectly, exercise his or her discretion in a particular case in a particular way, it would mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality dismissal, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.
theft and borrower
JA96/2018
Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA96/2018) [2020] ZALAC 23; (2020) 41 ILJ 2059 (LAC); [2020] 11 BLLR 1071 (LAC) (18 May 2020)
[18] To articulate the notion of a misappropriation of property that is free of dishonesty is a contradiction in terms. In my view, to describe the deliberate retaining of property which the employee is not entitled to retain is not distinguishable, conceptually, from theft. Naturally, a proper appreciation of the dimension of the requisite intention in regard to misappropriation is not wholly free from difficulty. It is conceivable that a person, bona fide, intends to return an item at the time of borrowing but later changes that intention. If circumstances, where the probabilities are equally poised that at the outset, the borrower had an intention to return the item, how is the existence of the fact of a change of intention to be determined? Self-evidently, except in rare cases, that change of intention would have to inferred from the evidence. In such a case, the explanation proffered by the borrower would be of central importance. Where a borrower gives no explanation, can the inference indeed be drawn that the intention not to return the goods be made? In my view, such an inference can be drawn if, in the absence of other evidence, the probabilities lend weight to such an inference. This does not result from any onus on an employee to prove the absence of guilt; rather, it is a straightforward example of inferential reasoning to determine the probabilities on the available evidence.
[17] I disagree with this perspective of the conduct of Ngorima as articulated by the Labour Court and it cannot be endorsed. The idea that theft or dishonesty requires furtiveness or concealment is misplaced. It is true that, often, to either conceal the fact of the theft or to conceal the identity of the thief, the deed is done clandestinely. However, that is not an element of the crime. The crime of theft is based on the common sense of the ages: all that is required is that a person deliberately deprives another person of the latter’s property permanently. In industrial relations parlance, theft is frequently described as misappropriation of the employers property. Conceptually there is no useful distinction. The frequent resort to the lesser offence of being in unauthorised possession of the employers property, an act of misconduct listed in many disciplinary codes, caters for cases where a thieving intention is suspected and requires of employees to ensure that they do not place themselves under suspicion, relieving an employer from having to prove a specific intent.
concealment not an element of theft
misconduct: FRAUD
JA26/2019
Pick n Pay Retailers (Pty) Ltd v Maluleke and Others (JA26/2019) [2020] ZALAC 39 (7 September 2020)
[17] During the arbitration process much was made on the issue whether Ms Maluleke rendered herself guilty of attempted fraud. In my view, that is inconsequential because where a disciplinary rule has been contravened and the employee knew that such conduct could be subjected to discipline and had not been significantly prejudiced by the incorrect characterisation of the offence, discipline commensurate to the offence found to have been committed may be imposed.[See P A K le Roux & Andr van Niekerk: The SA Law of Unfair Dismissal (Juta & Co 1994) at 102.]
[18] Fraud is constituted by the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.[See S v Gardener 2011 (1) SACR 570 (SCA) par 29; S v Prinsloo and others 2016 (2) SACR 25 (SCA) at 65 para 174.] In my view, there were various elements of deceit on the manner in which the return/refund transaction was carried out by Ms Maluleke which points to her nefarious conduct.
[24] As demonstrated, Ms Malulekes conduct was deceitful. The Labour Court erred in holding that she was not dishonest. In any event, the union in its opening address during the arbitration placed it on record that it did not dispute that this purported offence has been committed. It merely challenged that it amounted to fraud and took issue with the appropriateness of the sanction of dismissal imposed on Ms Maluleke to which I now turn.
long years’ service (24 years)
JA26/2019
Pick n Pay Retailers (Pty) Ltd v Maluleke and Others (JA26/2019) [2020] ZALAC 39 (7 September 2020)
[26] Ms Malulekes 24 years of service with Pick n Pay, albeit a weighty factor, must be assed with other factors. The Court should strike a balance between the period of service; the gravity of the misconduct and its impact on the employment relationship. The acts of misconduct committed in this case were of a serious nature. The dishonest acts, as testified to by Mr Masipa, destroyed the relationship of trust…I am satisfied that the sanction of dismissal was not grossly disproportionate to the nature and gravity of the misconduct. In any event, the length of service, would not in all cases come to the aid of an employee. This Court held in Toyota SA Motors (Pty) Ltd v Radebe & others:
Although a long period of service of an employee will usually be a mitigating factor where such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty.
Misconduct: dishonesty
JR 2036/17
Department of Education: Mpumalanga Province and Others v Mthala N.O and Others (JR 2036/17) [2020] ZALCJHB 202 (21 April 2020)
Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC)
courts reference there to the elements of dishonesty. as entailing a lack of integrity or straightforwardness and in particular, a willingness to steal, cheat lie or act fraudulently.
manually entered by Xaba and approved by Sihlangu, was just too great to ascribe to a mistake[27]…In short – the evidence ineluctably points to an intent of the part of both employees to act, in the words of Nedcor Bank Ltd, without integrity or straightforwardness, i.e. dishonestly. Given the serious nature of the misconduct, the penalty of dismissal is appropriate. In summary, there are no other reasons, having regard to the record, to justify the arbitrators conclusion.
In Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC), the court referred to the elements of dishonesty as entailing a lack of integrity or straightforwardness and in particular, a willingness to steal, cheat, lie or act fraudulently. While this judgment is relied on by the arbitrator to find, it would seem, that there was no evidence of any dishonest intent on the part of either of the employees, it should be recalled that the facts of that case concerned conduct by the employees of a bank and an ATM situated at an airport. The ATM had run out of cash over a particularly busy weekend, and could not be loaded until the Monday. The employee concerned and his supervisor decided not to leave the ATM in a condition that would alert the airport management to the fact that the machine had run out of cash, and to disengage the machine in such a way that it failed to operate, but did not indicate that it had run of cash. The purpose of this act was to protect the bank from the wrath of the airports management. The employee was dismissed for dishonesty, in that he had allowed his supervisor to disengage the card reader. The employee was reinstated after an arbitrator hearing, a decision that was upheld by this court and the LAC. The LAC stated that to sustain the fairness of the dismissal, some intention beyond an act that is merely reckless, disobedient or foolish was required. The court found that the explanation proffered by the employee (i.e. that he wished to protect his employer from the wrath of the airports management) was entirely plausible, and that on the evidence, no other reason (let alone one related to dishonesty) suggested itself.
Misconduct: WhatsApp status and two gruesome videos
JR 284/2019
Lucerne Transport v TAWUSA and Others (JR 284/2019) [2020] ZALCJHB 195 (7 May 2020)
The Applicant checked the Respondents WhatsApp status and found two gruesome videos. The first video clip was of two people, the one decapitating the other and in the second video a person was cutting up another person, whilst still alive. Mr Henery stated that as a Lucerne driver, the Respondent represents the Applicant and he is the face of the Applicant. Anyone who had the Respondents number, would be able to view these video clips and it violated everything the Applicant stood for. The video clips were extremely offensive.
[15] It was expected of drivers to have a device on which the Applicant via its controllers could communicate with them. The device is the personal property of the driver. Mr Henery testified that the controllers who viewed the video clips were shocked. He explained that what an employee puts up in social media can have a direct impact on the working relationship with his / her employer.
[22] In cross-examination Mr Parsons confirmed that there are no terms and conditions attached to the use of a drivers phone, the only condition is that the driver must have a phone to stay in contact with the Applicant. The Applicant does not provide the drivers with phones.
[48] The first count of misconduct that the Respondent faced was that he had incited violence by displaying gruesome and murderous activity on his personal WhatsApp profile.
[49] To support this charge as a fair reason to dismiss the Respondent, the Applicant had to adduce evidence to show that the Respondent indeed incited violence and that he had done so by displaying the gruesome and murderous activity on his personal WhatsApp profile.
[50] The arbitrator found that the Applicant was unable to establish that the Respondent threatened or caused any violence in the workplace or to any staff members. The arbitrator further found that the phone was the Respondents private phone and absent any policy or agreement entered into in respect of the use of his personal mobile phone, the Applicant could not interfere in that regard.
negligence
JR1731/19
Cable Tapes Africa v Sehunane and Others (JR1731/19) [2020] ZALCJHB 72 (12 May 2020)
Grogan John: Workplace Law 10th Ed 20090, ch 13-p 226
[16] The above annotations warrant that I brood over what constitutes the misconduct of gross negligence. Tritely, in labour law, as suggested by Grogan, negligence bears the same meaning as it does in other areas of the law namely the culpable failure to exercise the degree of care expected of a reasonable person. In the workplace context, the reasonable person would be the reasonable employee with experience, skill and qualifications comparable to the accused employee. The learned author continues and says: Negligence may manifest itself in acts or omissions. The test is whether a reasonable employee in the position of the accused employee would have foreseen the possibility of harm and taken steps to avoid that harm. Employees may be guilty of negligence even if no harm results from their acts or omissions; what matters is if they might have caused harm. Negligence is akin to carelessness; if the employee actually foresaw the harm, the misconduct would be classified as deliberate, not negligent, and would self-evidently be more serious. Negligence and poor work performance overlap to the extent that work negligently performed is poor. However, poor work performance connotes consistent slipshod work. A single negligent act seldom warrants dismissal at first instance, unless it is of a kind so gross as to amount to recklessness.
…the whole tape that Mr Biyase was working on was defective and had to be scrapped. As a result, the applicant suffered financial loss in the amount of R35 000.00. According to Mr Sevnarayn, Mr Biyase could not provide any reason why he had failed to stop the machine when he realized that the defect on the tape was extensive.
inconsistency
JR592/18
Solidarity obo Motogi Sh v Commission for Conciliation Mediation and Arbitration and Others (JR592/18) [2020] ZALCJHB 76 (12 May 2020)
[14] The Applicant raised the issue of Nicole Govender who was also found guilty of dishonesty but was not dismissed. However, no further information nor evidence on similarities was submitted at the arbitration to establish a pattern of inconsistency before the Second Respondent. In National Union of Mineworkers on behalf of Butsane v Anglo Platinum Mine (Rustenburg Section)[(2014) 35 ILJ 2406 (LAC) at 2417 para 39.] it was held that “a generalised allegation is never good enough. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently must be set out clearly.”
[15] In Southern Sun Hotels Interest (Pty) Ltd v CCMA and others[[2007] 11 BLLR 1128 (CC).] the Court held that an inconsistency claim will f9’tl where an employer is able to differentiate between employees who committed similar transgressions on the basis of, inter alia, differences in personal circumstances, the severity of the misconduct or on the basis of other material factors.
[16] In NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another[[2000] 8 BLLR 869 (LAC) at para 19.] it was held ;that:
‘The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence”.
“[17] In terms of the judgment by the Labour Appeal Court in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others[Goldfields Mining SA (Ply) Ltd (K/oof Gold Mine) v CCMA and others 2014 (1) BLLR 20 (LAC).] in which the Court decided that
a review based solely on the fact that the Commissioner did not take certain factors into account or placed undue importance on certain factors (process related factors) does not comply with the Sidumo test and will most likely not succeed.[10] In essence the Court has to find whether the decision reached was unreasonable or put in another way whether the decision that the arbitrator arrived at is one that falls within a band of decisions to which a reasonable decision maker could come to on the available material.”
[19] In Frans Masubelele v PHSDSBC and others[Frans Masubelele v PHSDSBC and others (Case No: JR1151/08). Delivered on 17 January 2013.], Snyman AJ dealt with misconduct involving dishonesty where dismissal was fortified and the principles applicable to inconsistency reiterated. He found that the employee party has the evidential burden to show inconsistency and that no inconsistency was shown.
misconduct: gross negligence: culpa
JR 508/18
Long v South African Local Government Bargaining Council and Others (JR 508/18) [2020] ZALCJHB 222 (15 May 2020)
The test to determine negligence has been formulated in Kruger v Coetzee[1966 (2) SA 428 (AD)]
In Kruger supra, the following was said:
For the purposes of liability culpa arises if
(a) a diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(iii) the defendant failed to take such steps.
gross dereliction of duty in that he had failed to make the Pay As You Earn (PAYE) payment to SARS on time and that resulted in penalties for the Respondent.
JR 1386/2018
Adeyemi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1386/2018) [2020] ZALCJHB 185 (14 July 2020)
progressive discipline
Somoyo v Ross Poultry Breeders (Pty) Ltd[[1997] ZALAC 3 (26 June 1997)] where progressive discipline in the case of negligence was not required where the degree of professional skill which must be required is so high and the potential consequences of the smallest departure from that high standard are so serious that one failure to perform in accordance with those standards is enough to justify dismissal.
dismissal fair
misconduct: insubordination
JR1043/18
SAMWU obo MP Makibinyane and Others v SA Local Government Bargaining Council and Others (JR1043/18) [2020] ZALCJHB 140 (11 August 2020)
[62] Insubordination occurs when an employee refuses to accept the authority of a person in a position of authority over him or her. It is misconduct because it assumes a calculated breach, by the employee, of the duty to obey the employers lawful authority.[52] When an employee disregards the authority of or a reasonable and lawful instruction by an employer that amounts to insubordination.[53]
[63] As noted in Palluci Home Depot (Pty) Ltd v Herchowitz & others[54] . . . [A]cts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The failure by an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to or defiance of the authority of the employer may justify dismissal, provided it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employers lawful authority over him or her.
[64] The Commissioners starting point, in deciding whether or not this was gross insubordination, was to note that an employee has a fiduciary duty towards an employer and employee is expected to always act in the best interest of the employer and to comply with all reasonable and lawful instructions.[55] She then proceeded to make a distinction between the offences of gross insolence and gross insubordination. She had regard to Grogan’s book on Dismissal,[56] and concluded that insubordination can take many forms and is obviously a matter of degree. To justify a dismissal, the issue is whether the insubordination is gross and depends on the circumstances, including the manner in which it was expressed, the position of the person whose authority is repudiated, reason for the employees defiance and the number of times it occurs.[57] The Commissioner went on to find that the reason given for non-compliance was not justified as the right against self-incrimination only applied in criminal proceedings when an accused testifies. The Commissioner also found that the written instruction came from someone occupying the highest position in the municipality and that the refusal to obey was deliberate, continuous and gross.
[65] In TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 2 BLLR 142 (LAC) at para 21] the court stated that insubordination involved the defiance of an express direct and unequivocal instruction. The employer/employee relationship dynamic is premised on instructions being obeyed. It is intolerable that an employer is forced to negotiate day to day organisational arrangements with employees. The effect of the refusal was to undermine the working relationship .
[66] Taking into account the numerous requests from the Third Respondent to the employees and the communication from the employees representative refusing to comply with the instructions; the dicta in the TMT Supplies case holds true herein that an employer’s prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled insubordination and addresses operational requirements of the organisation that ensure that managerial paralysis does not occur.[59]
misconduct: conducted himself in an unreasonable and grossly negligent manner in failing to ensure the availability of full marine services for the night shift on Christmas day, causing the employer to fail to honour its undertaking made to its client.
DA17/2019
Solidarity obo Kruger v Transnet SOC Ltd t/a Transnet National Ports Authority and Others (DA17/2019) [2020] ZALAC 49 (1 December 2020)
[26] In considering sanction in the inquiry, the arbitrator sat in the stead of the employer. In doing so he was required to have regard to relevant circumstances. These included the nature and importance of the rules breached, the gravity of the misconduct, the harm caused by the employees conduct, whether the trust relationship had broken down, whether progressive discipline or dismissal for a first offence was appropriate, whether continued employment was intolerable, the employees personal circumstances, length of service and previous disciplinary record, the nature of the job and any relevant aggravating factors.
[25]…No other employee testified that a continued working relationship with the employee given this conduct was intolerable. The employees long service and clean disciplinary record were important mitigating factors, which required careful consideration to determine whether dismissal was appropriate or whether, having regard to the principle of progressive discipline, the imposition of a sanction short of dismissal was warranted. The failure on the part of the arbitrator to have proper regard to such factors constituted a material irregularity and resulted in an outcome which was one, on the material before him, that a reasonable commissioner could not reach.[12] In finding differently the Court a quo erred.
[29] It follows for these reasons that the appeal must succeed and the orders of the Labour Court set aside. Given that the dismissal of the employee was unfair, there is no reason why the primary remedy of reinstatement into the same or similar position should not be granted, with a final written warning valid for twelve (12) months cautioning the employee not to commit similar misconduct in the future.
misconduct: rule about carrying dangerous objects during strike
DA 12/2018
Pailpac (Pty) Ltd v De Beer N.O and Others (DA 12/2018) [2021] ZALAC 3; (2021) 42 ILJ 1038 (LAC) (1 March 2021)
[14] …(a) the employees (including the dismissed employees) were notified of the revised BOD rules as they were placed on the notice board at the entrance to the factory; (b) the dismissed employees regularly read notices and other announcements posted on that particular notice board; and (c) the employees (including the dismissed employees) were fully aware of their obligation to read the notices and other communications posted on the board.
Pailprint (Pty) Ltd v Lyster N.O & others (2019) 40 ILJ 2047 (LAC); [2019] 10 BLLR 1139 (LAC) at para 18 (Pailprint).
were brandishing or wielding those weapons, as specifically referenced in the charge sheet. In her view, they were merely carrying these weapons. Rather than construing these words in context, the arbitrator adopted an overly technical and formulaic approach to their interpretation – as well as to the framing of the charge – which our courts have consistently cautioned against.
[30] As acknowledged by the arbitrator in her award, any reasonable employee would know that bringing a dangerous weapon to work would not be tolerated. Thus, to do so in flagrant disregard of a clear workplace rule which prohibits such conduct during a picket or strike, and expressly warns that the consequences of the breach is the sanction of dismissal. Unlike the revised BOD rule, the picketing policy does not expressly state this. It does, however, state that where an employee’s actions during a picket are in breach of the organisations Discipline Code [otherwise known as the Breaches of Discipline Document], the employer may take disciplinary action. This effectively means that the dismissed employees knew or could reasonably have been expected to know that a breach of the rule could result in their dismissal. Accordingly, the contention advanced on behalf of the dismissed employees that the picketing policy did not inform employees that contravention was a dismissible offence is unsustainable on the evidence.
The sanction of dismissal was fair and appropriate in the circumstances.
misconduct: for referring to her manager, as a racist,
JR 1928/18
Forever Living Projects (Pty) Ltd v Stripp N.O and Others (JR 1928/18) [2021] ZALCJHB 24 (19 January 2021)
[9] In her conclusion, the Arbitrator said the crux of the dispute was whether Ms Bolelwang s accusations were baseless and without reasonable course.
[16]…By perusing the award, I discern that the Arbitrator did decide on this issue, as she concluded that Ms Bolelwang did not falsely accuse Mr Harrington of being a racist. Furthermore, she considered the concessions made by Mr Harrington that he used the K-word, took into account the totality of the circumstances such as that when Mr Harrington talks often uses phrases such as “you Black people”, then I conclude that this Court, as a reviewing court, cannot interfere with this conclusion. By perusing the award, I discern that the Arbitrator did decide on this issue, as she concluded that Ms Bolelwang did not falsely accuse Mr Harrington of being a racist. Furthermore, she considered the concessions made by Mr Harrington that he used the K-word, took into account the totality of the circumstances such as that when Mr Harrington talks often uses phrases such as “you Black people”, then I conclude that this Court, as a reviewing court, cannot interfere with this conclusion.
misconduct: absenteeism
JR1594/18
Malimba v Commission for Conciliation, Mediation and Arbitration and Others (JR1594/18) [2021] ZALCJHB 2 (23 January 2021)
[24] The offence of absenteeism requires fault on the part of an employee, and in considering the fairness of a dismissal in such cases, the Commissioner was required to inter alia, examine factors such as the duration of the absence, the nature of the Applicants job, previous warnings, the reason for absence, and whether the Applicant attempted to contact the Employer during the period of absence.
serious misconduct
JR124/18
City of Johannesburg v Jacobs N.O and Others (JR124/18) [2021] ZALCJHB 12 (8 February 2021)
Impala Platinum Ltd v Jansen & others (2017) 4 BLLR 325 (LAC).
[86] In recognition of the seriousness of such misconduct on the employment relationship there is a plethora of judgments that has repeatedly ruled that serious misconduct self-evidently leads to the breakdown of the trust relationship.[62]
[87] In Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer[] the Labour Court set aside a commissioners award on review because the employer had not led any evidence to establish the breakdown in the employment relationship. The LAC reversed the decision on appeal and found the award reasonable despite the absence of the evidence in question. It upheld the commissioner because it found that:. . . it is implicit in the commissioners findings that in view of the nature of the offence, which involved deception and dishonesty and, in particular, the failure of the first respondent to demonstrate any acceptance of wrongdoing or remorse, he considered the employment relationship to be destroyed and dismissal an appropriate sanction.
[88] Also, in Absa Bank Limited v Naidu & others,[(2015) 36 ILJ 602 (LAC) at para 42.] it was stated that: there are varying degrees of dishonesty and, therefore, each case is to be determined on the basis of its own facts on whether a decision to dismiss an offending employee is a reasonable one. Generally, however, a sanction of dismissal is justifiable and, indeed, warranted where dishonesty involved is of a gross nature.
misconduct: COVID
JR1644/20
Eskort Limited v Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53; (2021) 42 ILJ 1201 (LC) (28 March 2021)
failure to disclose to the employer that he took a COVID-19 test .was informed by management to stay at home. He nonetheless reported for duty after 10 July 2020. This was even after he became aware from 20 July 2020 of Mchunus positive results.
[9] I fully agree with the contentions made on behalf of the Applicant, and further add that the findings and conclusions of the Commissioner on the issue of the appropriateness of the sanction and the relief granted, are entirely disconnected with the evidence that was placed before him, making the award reviewable.
[20]…whether existing health and safety measures and protocols in place are being taken seriously by everyone affected.
section 17(3)(a) of the PSA
JA42/2020
MEC for Health (North West Province) v South African Medical Association and Another (JA42/2020) [2021] ZALAC 38 (18 October 2021)
Grootboom v National Prosecuting Authority and another 2014 (2) SA 69 (CC); Phenithi v Minister of Education and others 2008 (1) SA 420 (SCA); Minister of Defence and Military Veterans and another v Mamasedi 2018 (2) SA 305 (SCA).
[22] It is now trite that the deemed dismissal provision in section 17(3)(a) of the PSA does not require a decision in order to operate. It operates automatically in terms of the law if all the requirements of the section are met. If a person to whom the section applies, absents himself from his employment without permission for a period exceeding one calendar month, in terms of the law, as stipulated in that section, he (or she) shall be deemed to have been dismissed from the public service on account of misconduct with effect from the date immediately succeeding his or her last day of attendance at his or her place of duty.
employee refuses to testify at the arbitration
JA59/20
Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA59/20) [2021] ZALAC 42 (26 October 2021)
[22] The fact of the matter is that the employee was given a clear instruction, which was neither unreasonable, nor unfair. She was asked to testify, but not told what to say although she was asked to try and remember what had been said. The one issue she could testify about, notwithstanding her periodic amnesia, was that there was an altercation in Govender’s office between Govender and Maili and she intervened and removed Maili from the office to calm things down, as the argument between them could have gotten out of hand.[23] The employees justification for her refusal to testify was twofold: that she could not remember everything that happened during the incident about which she was required to testify, other than what was stated in the preceding paragraph, and that her evidence would be of no use to the appellant, and, worst still, that she will make a fool of herself if she gave evidence. An important fact is that it was not for the employee to decide whether her evidence would be relevant. She had been instructed to testify and she had a duty to comply with that instruction. That is an obligation that an employee has. The employee may however raise an excuse for not wanting to do so, provided it constitutes a valid, and acceptable excuse for non-compliance.
misconduct: fraud
JR 2827/18
Madikizela v City of Ekurhuleni Metropolitan Municipality and Another (JR 2827/18) [2021] ZALCJHB 205 (26 July 2021)
[91]…Nedcor Bank Ltd v Frank and Others [[2002] 7 BLLR 600 (LAC) at para 15.], where the Court held that Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently ….
[94]…Monare v SA Tourism and Others[(2016) 37 ILJ 394 (LAC) at para 53.] it was held that To establish fraud there must be proof of unlawful misrepresentation causing prejudice to another which was made with the intention to deceive . Similarly, and in Pick n Pay Retailers (Pty) Ltd v JAMAFO obo Maluleke and Others[[2020] 12 BLLR 1229 (LAC) at para 18.] it was held that: Fraud is constituted by the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another. Considering the facts in casu, by approving the invoice and payment certificate in the sum of R541 293.62 for payment on the basis that work was completed when it was not, the applicant committed a misrepresentation. She clearly knew that what was reflected on the invoice and payment certificate was false, but she nonetheless deliberately decided to approve it.[In Brink v Humphries & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA) at para 3, the Court held: In deciding whether a misrepresentation was made, all the relevant circumstances must be taken into account and each case will depend on its own facts. For present purposes, all that need be said in this regard is that the furnishing of a document misleading in its terms can, without more, constitute such a misrepresentation.] This undoubtedly must be an unlawful misrepresentation, especially considering that she knew what was expected of her.[Compare Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer (2015) 36 ILJ 1453 (LAC) at para 19; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at para 38.] She clearly acted with intent to deceive, considering this was a stratagem to secure funds from a budget in a prior year for a project not provided for in the next financial year. If not for her approval, the invoice would never be paid
Malaka v General Public Service Sectoral Bargaining Council and Others (2020) 41 ILJ 2783 (LAC) at para 33.
In an employment relationship, it is an implied term of the contract of employment that the employee will act in good faith towards, and serve, her employer with honesty. As a deputy director in the Department of Justice, the appellant occupied a position of trust which enjoined her to conduct herself honestly towards the department, which has a zero-tolerance policy to cases of dishonesty. The deliberate falsification of documents to secure a vehicle for her own personal use is a serious offence that implicated the appellants honesty. That the value of the loss suffered by the employer was negligible is not a mitigating factor. This court has taken a strict approach to dishonest conduct, even where the loss to the employer has been relatively small.
he consumed an intoxicating substance
JR1417/19
Imperial Dedicated Contracts (Pty) Ltd operating as Imperial Dedicated Contracts v Mpshe and Others (JR1417/19) [2021] ZALCJHB 198 (28 July 2021)
[10] The applicant contends that the arbitrator ignored the policy of the applicant dealing with intoxication at workplace. According to the policy it is an extremely serious offence to be under the influence of alcohol or drugs to report while intoxicated/drugged. This is materially different from the charge that Mpshe faced. It is indeed so that it is not expected of employers to draft charges elegantly, but at the general level, it can never be an offence, let alone a serious one to consume alcohol. As indicated earlier alcohol is found in various substance including medication. On a daily basis, through medication, employees consume alcohol at the workplace. The issue is intoxication or being under the influence as was aptly put by the LAC in Tanker Services (Pty) Ltd v Magudulela[2]. The LAC confirmed that in all probabilities it must be shown that the persons faculties are impaired to the extent that he or she could no longer perform the skills technically complex and highly responsible task.
[11] There was no shred of evidence that Mpshe was faced with such an impairment. There was no indication that after 16h00 Mpshe was required to perform his tasks and had failed because of the consumption of alcohol so detected. Applying the constitutional test, it cannot be said that the award of the second respondent falls outside the bands of reasonableness.
one of the applicants witnesses he testified that he had a bottle of Benylin[1] medication on that day.
poor performance: manager or skilled person
JR 2095/16
Pilusa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2095/16) [2021] ZALCJHB 189 (29 July 2021)
[13] In Somyo v Ross Poultry Breeders (Pty) Ltd,[[1997] 7 BLLR 862 (LAC) at 866C-867B:] the LAC, dealing with the poor performance of a senior employee or an expert, stated that: An employer who is concerned about the poor performance of an employee is normally required to appraise the employees work performance; to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee a reasonable opportunity to improve his performance Those requirements may not apply in two cases which are relevant to this matter. The first is the manager or senior employee whose knowledge and experience qualify him to judge for himself whether he is meeting the standards set by the employer The second is where . . . the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal (Emphasis added)
[14] Similarly, in the present instance, the applicant did not satisfy the requirements of the appraisal, warning and opportunity to improve, which would apply in the case of an ordinary employee.[7] Thus, the Commissioner cannot be faulted for upholding the sanction of dismissal in the circumstances.
misconduct: payment to a third party that was not entitled to it
JR 1106/16
Bogoshi v Commission for Conciliation, Mediation and Arbitration and Others (JR 1106/16) [2021] ZALCJHB 186 (2 August 2021)
[106] In dealing with dishonesty, the Court in Nedcor Bank Ltd v Frank and Others[(2002) 23 ILJ 1243 (LAC) at para 15.] held that Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently …. There can be no doubt that the applicant exhibited such lack of integrity and a propensity to lie. She offered a number of irreconcilable explanations why she was entitled to the payment of R85 000.00, when it must have been clear to her, as a matter of common sense, that this was not the case.
[107] In Department of Education: Mpumalanga Province and Others v Mthala N.O and Others[(JR 2036/17) [2020] ZALCJHB 202 (21 April 2020).] the Court deal with an instance where employees made a payment to a third party that was not entitled to it. What is relevant to the matter in casu is that the employees in that case raised the same kind of explanations that the current applicant raised. Those employees for example said there was a source document with the same names erroneously relied upon and that the employee was overworked. The Court held as follows:[Id at para 27. See also Ming v MMI Holdings Ltd and Others (JR1211/17) [2019] ZALCJHB 238 (28 August 2019) where an employee exaggerated injuries she had suffered and the Court said at para 16: This exaggeration is an act that lacks integrity or straightforwardness with a clear willingness to lie. Therefore, it can never be doubted that the applicant was indeed guilty of dishonesty. That being the case, a finding that her dismissal was for a fair reason cannot be faulted .] In short – the evidence ineluctably points to an intent of the part of both employees to act, in the words of Nedcor Bank Ltd, without integrity or straightforwardness, i.e. dishonestly. Given the serious nature of the misconduct, the penalty of dismissal is appropriate.
[109] The applicant had a fiduciary duty not to conduct herself in the manner that she did, in that she was required to always protect the interests of the third respondent. Not only is this fiduciary duty implied in her position as Executive Manager in the third respondent and the fact that she would be responsible for the management of an entity that deals with public funds, but her employment contract and the third respondents policies specifically prescribe this fiduciary duty. Her contravention of this duty would justify her dismissal. In Sappi Novoboard (Pty) Ltd v Bolleurs[(1998) 19 ILJ 784 (LAC) at para 7.] the Court held as follows: It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully: The relationship between employer and employee has been described as a confidential one (Robb v Green at 319). The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’ If an employee does ‘anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him’
[110] The applicant exhibits a clear lack of understanding of the adverse consequences of her conduct and how this impacted on her trustworthiness as a senior manager in the third respondent. Applying her own version that she simply asked Gumede if all was in order and accepted what he said is indicative of this lack of insight in what was really expected of her. The same applies to the irregular manner in which she was appointed as COO, without even raising a query. The second respondent certainly appreciated this in his award. This is the kind of conduct that is completely destructive of the employment relationship and the fiduciary duty that lies at its core, where it comes to senior managers.[Schwartz (supra) at para 20.] The case in casu is comparable to the following dictum in Roscher v Industrial Development Corporation and Others[(2018) 39 ILJ 2489 (LAC) at paras 72 73.] where it was said: Roschers testimony before the CCMA brings to light her flawed insight at the time she drafted the recommendation and her persistence in that error throughout the hearing. Through her conduct (and her testimony justifying it) Roscher established that she lacks judgment and cannot be trusted to act appropriately in the best interests of her employer. Her defence of her conduct on the dubious bases she advanced during the CCMA hearing confirms her unreliability. Her repeatedly stated conviction that she had no duty or obligation to disclose the negative assessment of the NFVF to the credit committee, and her assumption that her inaccurate and incomplete disclosure was sufficient, defy reasonable belief. Her version that she handed the report to Ford, told him it was OK and did not mention the damning comments because she wanted him to bring an objective opinion to bear, is improbable; and, were it to be believed, revealing of exceptionally poor judgment for a person in her position. Her stance reveals a notable lack of appreciation of her fiduciary duties in the due diligence process. By the same token, the representation of the information about the security or guarantee requirement in the recommendation is equally indicative of a serious lack of judgment on the part of Roscher. The document is replete with misleading and ambiguous statements about the nature of the security on offer. The communication of the true position was way below par, especially in the light of the fact that Roscher would or should have known the true position (as conveyed by Chavarika) after the meeting with Walmart in the USA. What was in fact conveyed to the credit committee, if not deceitful, reflects a disturbing lack of understanding of Walmart’s commitment, the basics of the due diligence process and the quality of the security required. The fact that Chavarikas email resulted in the credit committee ultimately not being misled on the security issue does not help Roscher. The email disclosed the true situation that Roscher should or must have known. Its obvious variance with the version she put forward in the recommendation was at the very least a grossly negligent and misleading breach of fiduciary duty, confirming her unreliability in undertaking the task at hand. Her attitude reflected a lack of concern or insight about the possibility that her misrepresentations and non-disclosure had significant potential to cause the IDC reputational and financial prejudice.
[111]sanction…Schwartz v Sasol Polymers and Others[(2017) 38 ILJ 915 (LAC) at para 30.] the Court held: In the current matter, the dishonest nature of the appellants misconduct was of such a nature as to make continued employment intolerable and dismissal a sensible operational response to risk management. It would be fundamentally unfair and unjust to expect an employer to retain in its workplace a senior employee who has shown himself guilty of dishonesty in the manner of the appellant. The high premium on honesty in the workplace and the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely.
misconduct: failing to stop at stop street
JR2543/19
Q4 Fuel (Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR2543/19) [2021] ZALCJHB 267 (25 August 2021)
[63] It was clear on Mr Magagula’s own version that he failed to stop at the stop street, as he was obliged to in terms of the rules governing motorists who travelled on the road. The applicant’s case was that Mr Magagula’s failure to stop at a stop sign amounted to gross negligence and that his conduct had rendered a continued employment relationship intolerable. As stated at the outset of this judgment, the question is whether this is fair.
[64] Negligence is a failure to comply with the standard care that would be exercised by a reasonable person in the circumstances.[14] The test is objective in the sense that one must compare the conduct of the employee against the hypothetical reasonable employee. The test also incorporates an element of subjectivity in the sense that one has regard to a reasonable person in the position of the employee. Grogan suggests that in applying this subjective element, one must consider the conduct of a reasonable employee with the same skills and experience as the employee who has been charged. I have little difficulty with this as a general proposition. But that should not be overstated. Where an employee is employed on the understanding (express or implied) that he or she must measure up to a certain standard, it can hardly lie in the employee’s mouth to complain that the standard was too high. The answer to such a complaint is that the employee should not have accepted the offer of employment in the first place. Whatever the case may be, I do not think these considerations arise in the present case. In my respectful view, the employer has failed to prove negligence.
[65] Our courts have repeatedly observed that the failure to comply with Road Traffic Regulations, does not necessarily mean that a motorist is therefore negligent.[Rawles v Barnard 1936 CPD 74; Bellstedt v South African Railways and Harbours 1936 CPD 399; Steenkamp v Steyn 1944 AD 536; Hodgson v Hauptfleisch 1947 (2) SA 98 (C); Sander Company Ltd v South African Railways and Harbours 1948 (1) SA 230 (T); Knoetze v Randalia Versekeringsmaatskappy van SA Beperk 1979 (1) SA 812 (A)]
[66] In Rawles v Barnard, supra, Davis JA, after finding that the defendant had travelled at a speed of 40 miles per hour in an area where the speed limit was 30 miles per hour, noted: ‘This pace is not necessarily negligent at a place where there is no traffic even though it is in breach of the Motor Ordinance …. In my opinion it depends entirely on the circumstances of the particular case; the statutory regulation or ordinance may be a guide to the court in arriving at a conclusion as to whether there has been negligence or not in a particular case.’
[67] This is entirely in keeping with common sense. Since the enquiry is whether the employee failed to show that standard of care which a reasonable employee in his or her circumstances, would have, the existence of a statutory provision designed to regulate such conduct may be a guide to determining whether the employee has deviated from the standard of a reasonable employee.
[71] Given the facts of the case and the fact that Mr Magagula had (or had not been shown not to have) conducted a proper observation before proceeding through the stop street at a safe speed and in a safe manner, it seems difficult to understand on what basis it was considered appropriate to charge him at all. It is probably for this reason that the arbitrator found the evidence of the prior altercation an attractive explanation. As I have already observed, it was not appropriate or fair for him to have done so. It is sufficient to observe that he was not guilty of the charges and that his dismissal was substantively unfair.
misconduct: manager disrespect of subordinates, bullying
JR2261/18
Standard Bank of South Africa v Makuleni (JR2261/18) [2021] ZALCJHB 309 (22 September 2021)
[32] Why I highlighted this is that one of the submissions made on behalf of Ms Makuleni during argument was that the employees really were poor performing employees or had deserved to be reprimanded for not doing their work. But I think that that misses the point and this witness expressed it entirely in a probable and in fact the correct fashion. That while a manager is entitled to correct misconduct or failure to follow policies in the workplace, there is absolutely nothing wrong with that, and a manager may also be robust in doing so. It however does not give the manager a licence to treat employees with disrespect, especially in front of other people. There is a way to mete out discipline and that manner requires that the process be dignified and respectful.
[63] I agree with the submission on behalf of Standard Bank that there could be one of three possibilities which the arbitrator had to consider. One was; all of these witnesses had a conspiracy against Makuleni and were coming forward to try and get rid of her. Second, they were acting on some sort of a common rumour which had been floating around and each were merely repeating a rumour that they have heard by the other; or third, that all of them actually demonstrated that Makuleni had a propensity to be rude and disrespectful when it came to her interpersonal relationships with her colleagues.
[71] Another clear case of an example, in the matter of South African Rugby Union v Watson[(2019) 40 ILJ 1052 (LAC)] the LAC found that, despite the long service of an employee who was in a managerial capacity; that employees treatment of his various subordinates, some of them actually resigned and moved on, that the commissioners decision; that dismissal was an appropriate sanction for a long-serving manager who had treated subordinates with contempt over a long period of time was a reasonable decision.
[74] The only reasonable conclusion that any reasonable arbitrator could come to on the evidence led, that is summarised above, is that Ms Makuleni was indeed guilty of all of the offences for which she was dismissed. In essence, she had conducted herself in a manner which had destroyed the employment relationship by creating such disharmony and fear in the environment that she worked that she was no longer and could not safely continue the job that she was employed to do, which was to manage a branch. As I found, her conduct, in my view, amounted to workplace bullying quite apart from the fact that she had substantially damaged the interpersonal relationships between the parties. I am therefore satisfied that the commissioners decision is reviewable and I then make the finding that the award should be set aside.
misconduct: under the influence of alcohol
JR763/18
Air Products South Africa (Pty) Ltd v Matee and Others (JR763/18) [2021] ZALCJHB 332 (30 September 2021)
[27] It is clear from the above authority that the zero-tolerance policy will be accepted only where the circumstances necessitate its adoption by the employer. Thus, when pursuing a zero-tolerance policy, the employer has a duty to show that dismissal is appropriate and proportional to the offence.
[39] The arbitrator relied on the judgment in Tanker Service (Pty) Ltd v Magudulela[[1997] 12 BLLR 1552 (LAC)], which was relied on in Tosca Labs v CCMA[(2012) 33 ILJ 1738 (LC)] to find that the employee will only be under the influence of alcohol if he was not able to perform the tasks entrusted to him. Further that the policy of zero tolerance should not lead to the termination of employees services in all circumstances specifically where it was not established that the employee was not able to execute his duties.
[42] In light of the above, I do not deem it wise to remit the dispute to the bargaining council for arbitration de novo. Instead, I will determine the dispute in terms of section 145(4)(a) of the LRA. To an extent that the applicant led undisputed evidence to show the need for zero-tolerance approach to the misconduct and the proportionality of the dismissal to the misconduct, its decision to dismiss the first respondent was justifiable.
misconduct: accepting a bribe
JR988/18
Makhalanyane v Department of Education, Free State and Others (JR988/18) [2021] ZALCJHB 428 (8 November 2021)
[11] The evidence before the arbitrator established that: The allegation that the applicants legal representative was prevented from having his case fully ventilated is not borne out by the transcribed record. The applicant only knew Thipe for 15 days and money was paid by the latter into his personal bank account. It is indeed a remote possibility that him and his wife would loan a significant amount of money to someone he had known for such a short period of time. The first respondent is correct in contending that even more remote is the possibility that the applicant would have done so at a cost to himself, pertaining to the interest liability on the purported loan, which on the applicants version was used by him to provide a loan to Thipe. The applicants own wife who was called to testify on behalf of the applicant did not know the details of his relationship with Thipe. She also contradicted the applicants version when she testified that an amount of R6 000.00 was loaned to Thipe out of the sum of R10 000.00 which she was holding on behalf of the stokvel to which she is a member.
misconduct: revealing confidential information contrary to an agreement at an arbitration
DA7/20
Jacobs v KwaZulu-Natal Treasury (DA7/20) [2021] ZALAC 50 (9 December 2021)
[37] Furthermore, the appellant, in my view, did not breach the confidentiality agreement by tendering such evidence before the Nelsen arbitration. It would be a great travesty of justice if this court were to make a finding that supports the respondents version that the appellant breached the confidentiality agreement when giving evidence in an arbitration process or that she breached the confidentiality agreement when she disclosed the irregularities and/or dishonesty that were committed by members of the selection panel at a hearing related to what transpired at the selection panel.[38] It is, also, my view that an employer may not invoke a confidential agreement to conceal wrong doings in the workplace and an employee who has signed a confidentiality agreement does not require the permission of his or her employer to reveal wrongdoings in the workplace if required to do so in legal proceedings. If permission is to be obtained first, any dishonest conduct will never see the light of day.
[11] Manifestly, the third respondent acted dishonestly in absenting himself from work on the basis that he was too ill to perform his duties but then travelled for at least an hour to support his local rugby team, knowing full well that he would be paid for the day. The finding of the second respondent that there had been no act of dishonesty is obviously subject to review, even if the standard for review were so onerous that an award could only be set aside on the basis of an egregious error. This is exactly the appropriate term to describe the approach adopted by the second respondent and regrettably it was repeated by the court a quo.
misconduct: dishonesty regarding sick leave
PA12/2020
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PA12/2020) [2021] ZALAC 49 (10 December 2021)
even where no policy existed of what an employee who had been booked medically unfit to work was not entitled to do when not at work
Misconduct: moonlighting
CA8/2020
Bakenrug Meat (Pty) Ltd t/a Joostenberg Meat v Commission for Conciliation, Mediation and Arbitration and Others (CA8/2020) [2022] ZALAC 4; [2022] 4 BLLR 319 (LAC) (18 January 2022)
[15] The evidence clearly indicates however that the third respondent failed to disclose an essential and important fact that she was running a side-line business in the market for the sale of meat products, albeit that they might not have been identical to the meat products which were sold by appellant. That she was able to discharge her duties to the appellant does not take her case any further. She was employed as a sales representative in a business that was involved in the sale of meat products. As a side-line business, she conducted a business which involved the sale of biltong, namely a meat product. She failed to disclose these obviously material activities to her employer and was therefore manifestly acting in violation of her duty of good faith to her employer.
[10] On the basis of the decision in Schwartz v Sasol Polymers and others (2017) 38 ILJ 915 (LAC) at para 30, counsel submitted that dishonest non-disclosure of a material fact justifies a dismissal and further that a calculated silence in the face of a duty to inform an employer of a material facts amounted to a fraudulent non-disclosure.
[8]…Sappi Novo Board (Pty) Ltd v Bolleurs (1998) (19) ILJ 784 LAC) at para 7:If an employee does anything incompatible with his due or faithful discharge of his duty to his master, the latter has a right to dismiss him.
misconduct relating to dishonesty and gross negligence
DA2/2020
Massmart Holdings v Reddy and Others (DA2/2020) [2022] ZALAC 11; [2022] 4 BLLR 337 (LAC) (18 January 2022)
[31] The commissioners finding that the first respondent did not do any work because he did not provide Mr Roopnarian with the final product, that is, the risk assessment worksheet, is, in my view, unreasonable. Contrary to the finding of the commissioner, from the perusal of the charge sheet coupled with evidence on record, the risk assessment worksheet was not the work that the first respondent was supposed to show as an indication that he has not been honest. What was expected of the first respondent, as charge 1 indicated, was to show that he had been in the process of compiling the worksheet and not that he had already completed compiling the risk assessment worksheet.
[35] The question, therefore, is whether the first respondent did not do this work. In my view, he did.
sexual harassment
JA17/2021
Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JA17/2021) [2022] ZALAC 2; [2022] 4 BLLR 324 (LAC) (27 January 2022)
[3] Both the 1998 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (the 1998 Code), issued by National and Economic Development and Labour Council (NEDLAC) under section 203(1) of the Labour Relations Act 66 of 1995 (the LRA), and the subsequent 2005 Amended Code on the Handling of Sexual Harassment Cases in the Workplace (the Amended Code), issued by the Minister of Labour in terms of s54(1)(b) of the Employment Equity Act 55 of 1998[7] provide that victims of sexual harassment may include not only employees, but also clients, suppliers, contractors and others having dealings with a business.[8] It follows that the 1998 and Amended Code apply to members of the public who access public services.
[6]”He made sexual remarks that I look like I taste nice in bed.”
[32] In Sidumo it was made clear that[[2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)[2007] ZACC 22; ; 2008 (2) BCLR 158 (CC) at para 79.] -In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.
[34] In Campbell Scientific Africa,[Campbell Scientific Africa (Pty) Ltd v Simmers [2015] ZALCCT 62; (2016) 37 ILJ 116 (LAC) at para 35. See also Gaga v Anglo Platinum Ltd [2011] ZALAC 29; (2012) 33 ILJ 329 (LAC) at para 48.] this Court stated that in the context of sexual harassment sanction serves an important purpose in that it sends out an unequivocal message that employees who perpetrate sexual harassment do so at their peril and should more often than not expect to face the harshest penalty.[20] Sexual harassment committed by an official employed in the public sector, in the course of the provision of public services to a member of the public, constitutes serious misconduct insofar as it amounts to an abuse of a public position of authority. Where such harassment is committed more than once and directed at the same member of the public this makes it all the more serious.
Misconduct: intended by her actions to be dishonest
PA02/2020
Austin-Day v ABSA Bank Ltd and Others (PA02/2020) [2022] ZALAC 6 (8 March 2022)
[33] Without any shred of evidence that suggest that the appellant was dishonest in her conduct, as I have already indicated here above, the acceptance of the appellants explanation, in my view, was reasonable.
[41] If there was any misconduct, it was not serious enough to warrant dismissal. The evidence on record is that when Mr Vallentyn and forensics learnt about this unfortunate incident, they did not give an indication that this was a serious transgression.
[42] The appellants unblemished record of thirty-three years of service also speaks for itself and militates against the sanction of dismissal. The further unchallenged evidence that the appellant will never do it again and the fact that she conceded in evidence that in hindsight she realised that she made an error of judgment, also confirms in her favour that dismissal was unwarranted.
Misconduct: gross dishonesty and standard of proof of guilty
JR 642/19
NEHAWU Obo Maselopi Pauline Mojapelo v South African Revenue Services and Others (JR 642/19) [2022] ZALCJHB 31 (16 February 2022)
[24] Furthermore, the test adopted by this Court is not whether a person is guilty beyond a reasonable doubt (which has a higher onus), but rather which version of events is more probable, on a balance of probabilities. This principle was confirmed as far back as in the case of Early Bird Farms (Pty) Ltd v Mhlambo [1997] 5 BLLR 541 (LAC) which found that in cases pertaining to misconduct, an employer needs not prove with ‘absolute certainty’ that an employee was guilty of the alleged misconduct and that proof on a balance of probabilities was sufficient.
[28] In Standard Bank of South Africa Ltd v CCMA and Others [1998] 6 BLLR 622 (LC), this Court confirmed the principle that an employee has a duty to act in good faith towards his or her employer and a breach of this duty in the form of dishonest conduct by the employee goes to the ‘heart of relationship and is destructive of it.'[29] In Toyota South Africa Motors (Pty) Ltd v Radebe and Others [2000] 3 BLLR 243 (LAC), the Honourable Zondo AJP (as he was then) remarked that ‘In my view, gross dishonesty must rank as one of the extreme cases of serious misconduct which an employee may make himself guilty of, and which an employer may have to deal with, in a workplace.'[30] In Shoprite Checkers (Pty) Ltd v CCMA and Others (2008) 8 BLLR 838 (LAC), the LAC confirmed the principle set out in the Standard Bank case above and upheld that the dismissal of an employee who was caught consuming company food and then fabricating an explanation for his actions was fair.[31] In City of Johannesburg v Jacobs NO and Others [2021] 6 BLLR 579 (LC), this Court upheld the dismissals of traffic officials who were illegally promoting candidates for learner driving licenses during their learner driver’s test.[32] In Bitou Municipality v Minister of Local Government, Environmental Affairs and Development Planning, Western Cape Provincial Government and Others [2021] 5 BLLR 435 (LAC), the LAC, inter alia, upheld the dismissal of a manager who was dismissed for financial misconduct and dishonesty.
[33] It is clear from the jurisprudence canvassed above that misconduct, in the form of dishonesty, is viewed in a serious light. Where employees are guilty of gross dishonesty, then more often than not, the trust relationship between the employer and the employee will be broken irretrievably.
dishonesty vs negligence: shortage of an amount equivalent to R33 408.90.
JR 899/19
Department of Defence v Thamaga N.O and Another (JR 899/19) [2022] ZALCJHB 77 (9 March 2022)
[41] Although the charge that led to the impugned sanction did not allege dishonesty, the applicant in its founding papers alleged that an employment relationship has been obliterated beyond repair as a result of Masombukas act of dishonesty. Which one, I ask? Withal, generally, dishonesty destroys a continuation of an employer and employee relationship. However not all acts of dishonesty justify dismissal[39]. The LAC in Nedcor Bank (Pty) Ltd v Frank & others[40] held that dishonesty entails a lack of integrity, particularly willingness to steal, cheat, lie or act fraudulently. Masombuka faced allegations of negligence as opposed to dishonesty.
[42] Nonetheless, owing to the fact that not all dishonesties merit dismissal as a sanction, the question when it comes to reasonableness, is whether the decision of not imposing dismissal as a sanction is so unreasonable to an extent that no other reasonable decision maker may reach it. In labour law, a sanction of dismissal must not just be imposed willy-nilly. It must be fair and appropriate. For instance, item 3 (4) of Schedule 8 provides that generally, it is not appropriate to dismiss an employee for a first offence except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Item 7 (b) (iv) of Schedule 8 provides that any person who is determining whether a dismissal for misconduct is unfair should consider whether or not dismissal was an appropriate sanction for the contravention of the rule or standard.
[48] Considering the means as exalted, the sting in the charge Masombuka was found guilty of is that of negligent mismanagement by failing to balance an account. It was never alleged and or proven that Masombuka stole the money in question nor did she act fraudulently and or dishonestly. The loss arose because of her negligent mismanagement and not her dishonesty that was never alleged or proven. The term mismanage literally means doing something badly or wrongly. Fortunately, in the charge, the applicant outlined that something to be the balancing of an account. Thus, Masombuka wrongly or badly balanced the account. Of importance, she did not do that deliberately. Negligence means failing to take proper care over something.
[49] Consequently, the sanction of final written warning coupled with the recovery order is appropriate for the charge of negligent mismanagement. It serves the purpose of discipline, promotion of acceptable behaviour and correction of behaviour, all of which are in line with the basic values and principles governing public administration as outlined in section 195 of the Constitution. As a parting shot, section 195 (1) (h) provides that good human-resource management and career development practices to maximize human potential must be cultivated is one of the democratic values and principles. Thus, progressive discipline as a labour law concept is not an outlier nor is it obliquely juxtaposed to the principle.
misconduct: reports for duty whilst under the influence
JR1261/19
Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others (JR1261/19) [2022] ZALCJHB 55 (15 March 2022)
[31] The parties and the Commissioner accepted that in relation to Charge 1, it warranted a sanction less than dismissal.[23] It is clear then that there was a common understanding that the fact that an employee reports for duty whilst under the influence may not be an automatically dismissible offence.
57] In casu, the Employee did not just report to work whilst under the influence, he drove a vehicle with 10 employees in it whilst under the influence. In addition, the submissions by the Employees representative was that there were no obvious signs that the Employee was under the influence should be rejected as well.[58] The applicable principles are clear that the job function of the employee is relevant in determining the fairness of dismissal in cases dealing with being under the influence of alcohol. Where the job is highly skilled, responsible or hazardous or the offence is committed by a senior employee who should be beyond reproach, the Courts have found that dismissal for a first offence is justified.[46]It seems to me that in instances where the job function of an offending employee is such that misconduct of this nature would be extremely dangerous and could result in death, injury or damage, a strict application of the rule forbidding it must be applied. A Strict application of such a rule is of importance to the company, its employees, and public policy. Commissioners, in weighing up the evidence before them, must have due regard for the importance of such a rule and its role in justifying the dismissal of an employee.
[61] A further consideration ought to be the implications of being lenient in the application of an important rule and the message such lenience sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust. In this regard the Court in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2000) 21 ILJ 1051 (LAC) at para 22.] stated the following: Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.
misconduct: On the morning of the (protected) strike the workers clocked in at the workplace of the appellant but then left to participate in the strike.
JA77/19
Tzaneng Treated Timbers (Pty) Ltd v Bargaining Council Wood for the & Paper Sector and Others (JA77/19) [2022] ZALCJHB 88 (6 April 2022)
[16] It was most definitely unfair for the appellant to have equated the conduct of the respondent employees with that of actual fraudsters, who, for example would get others to clock in for them while they were not at work, or utilise some other means, in order to create a false impression of being at work and being entitled to payment.
misconduct relating to dishonesty: dishonesty as a lack of integrity or straightforwardness
JA32/2021
SASBO-The Finance Union and Another v Standard Bank and Others (JA32/2021) [2022] ZALCJHB 105 (17 May 2022)
[17] Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception.[CI Tshoose & R Letseku: The breakdown of the trust relationship between employer and employee as a ground of dismissal: Interpreting the Labour Appeal Court’s decision in Autozone 2020 SA Merc LJ 162.] This Court in Nedcor Bank Ltd v Frank & others[(2002) 23 ILJ 1243 (LAC).] defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.[Nedcor Bank Ltd v Frank & others (2002) 23 ILJ 1243 (LAC) para 15.] Deceitfulness can manifest itself in various forms, which includes providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal.[Van Niekerk A et al, Law@work 4th ed (LexisNexis 2017) 299.] In terms of the banks disciplinary code, dishonesty would include, amongst others, deliberately giving untrue, misleading or wrong information or instructing a subordinate to do so; falsification of the bank records; theft, misappropriation or unauthorized possession of property or funds belonging to another employee or a customer; fraud or forgery. These offences are regarded as dismissible actions without previous warnings in the banks disciplinary code.
[24] The workplace disciplinary hearings are not criminal proceedings. This Court held in Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others, that:[(2011) 32 ILJ 2455 (LAC) para 32.](T)he misconduct charge on and for which the employee was arraigned and convicted at the disciplinary enquiry did not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the appellant’s disciplinary codes, referred to above. It was sufficient that the wording of the misconduct alleged in the charge-sheet conformed, with sufficient clarity so as to be understood by the employee, to the substance and import of any one or more of the listed offences. After all, it is to be borne in mind that misconduct charges in the workplace are generally drafted by people who are not legally qualified and trained
[25] The approach adopted by the commissioner was plainly incorrect. In any event, having determined that Ms Frazenburg was negligent, he ought to have dealt with the charge on that basis. It was not open to him to simply state that because the employee had not been charged, in the alternative, of negligence that was the end of the matter. The trier of fact is expected, in the context of discipline in the workplace, to deal with the wrong committed by an employee even if the charge may have been inelegantly phrased provided that the employee is not significantly prejudiced by the incorrect labelling of the charge. In Woolworths (supra) the court agreed with the example cited in the work of Le Roux & Van Niekerk, that:[P A K le Roux & Andre van Niekerk The SA Law of Unfair Dismissal (Juta & Co 1994) at 102.]’Employers embarking on disciplinary proceedings occasionally define the alleged misconduct incorrectly. For example, an employee is charged with theft and the evidence either at the disciplinary enquiry or during the industrial court proceedings, establishes unauthorised possession of company property. Here the rule appears to be that, provided a disciplinary rule has been contravened, that the employee knew that such conduct could be the subject of disciplinary proceedings, and that he was not significantly prejudiced by the incorrect characterization, discipline appropriate to the offence found to have been committed may be imposed.
[29] From the aforegoing, the capturing of the false balance on the banks records points to a dishonest conduct and not foolhardiness as found by the commissioner who clearly paid no attention to the operational needs of the banking industry. Ms Frazenburgs persistent plea of a mistake cannot avail her. The Labour Court correctly reasoned that in the banking environment, as fully set out in the general terms of employment, the employees are expected to be honest and not to circumvent the checks and balances put in place to prevent the misconduct of a kind committed here. The courts assessment of the evidence that Ms Frazenburg altered the bank records to reflect a false picture cannot be faulted.
[30] Ms Cassim testified that Ms Fredenburg’s conduct had an impact on the relationship of trust and continued employment relationship because she did not live up to one of the values of the bank which is to act with honesty and integrity. The need for employees to act with honesty and fidelity is so fundamental in the financial services industry, more so, where the employees deal with large sums of money. A breach of trust in the form of conduct involving dishonesty is one that goes to the heart of the relationship and is destructive of it.[12] It can hardly be argued that the dismissal was not justified.
misconduct: dismissed on account of repetitively testing positive for the cannabis drug and accordingly in breach of the Respondents Alcohol and Substance Abuse Policy.
JS 633/20;JS926/20
Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd (JS 633/20;JS926/20) [2022] ZALCJHB 142 (1 June 2022)
misconduct: case of dishonesty or similar impropriety, where there is no recognition by the employee of any wrongdoing
JR 365/2018
Assmang (PROPRIETARY) Limited T/A Beeshoek Mine v Commission for Conciliation Mediation and Arbitration and Others (JR 365/2018) [2022] ZALCJHB 135 (8 June 2022)
[13] That misdirection aside, counsel for the applicant relied on Timothy v Nampak (2010) 31 ILJ 1844 (LAC) to submit that in the case of dishonesty or similar impropriety, where there is no recognition by the employee of any wrongdoing, no remorse and no recognition of misconduct but only a blatant and clearly dishonest denial, progressive discipline can ordinarily not be justified. In the present instance, the employee persisted with his false version of events through his disciplinary enquiry and the arbitration hearing itself.
misconduct: Poor work attendance. Allegedly were absent without permission from 29/10/2019 and 4/11/2019; Allegedly continuously misuse sick leave and your conduct has demonstrated a pattern that you habitually book sick leave before and after weekends/rest period a conduct that is not acceptable.
JR 1436 / 2020
Association of Mineworkers and Construction Union obo Dube v Commission for Conciliation, Mediation and Arbitration (JR 1436 / 2020) [2022] ZALCJHB 156 (14 June 2022)
[82] On a holistic consideration of the facts before the arbitrator, his finding that Mr Dubes dismissal was fair, is disconnected from the evidence and is not reasonable. It follows that the arbitration award is to be interfered with on review.
misconduct: wearing high heels at work
JR1200/18
Mofokeng vs CCMA
[21] Dissatisfaction expressing protected ito Constitution: Reinstatement
Misconduct: negligent as opposed to being dishonest
JA32/2021
SASBO-The Finance Union and Another v Standard Bank and Others (JA32/2021) [2022] ZALAC 100; (2022) 43 ILJ 1794 (LAC); [2022] 10 BLLR 934 (LAC) (17 May 2022)
[1] In National Union of Metalworkers of South Africa obo Nganezi & others v Dunlop Mixing and Technical Services (Pty) Limited & others [(2019) 40 ILJ 1957 (CC) para 62.] the Constitutional Court held that: In our law, fiduciary duties are not implied by law into all employment relationships. They may be inferred as a matter of fact from employment contracts and moral notions of trust, confidence, loyalty and good faith. This appeal concerns primarily the question whether the conduct of Ms Charline Frazenburg (the second appellant), insofar as it is alleged by Standard Bank of South Africa Limited (the bank / the first respondent) that she falsified its records, amounted to dishonesty and thus breached the duty of trust and fidelity she owed to the bank.
Misconduct: progressive discipline
DA1/2021
Paarl Coldset (PTY LTD) v Singh (DA1/2021) [2022] ZALAC 98; (2022) 43 ILJ 2010 (LAC); [2022] 10 BLLR 920 (LAC) (2 June 2022)
[7] The appellant took further disciplinary action against the respondent following his conduct at the meeting with the Cassims on 17 October 2016 on the basis that his conduct had impacted negatively on the appellant since the Cassims had attended the meeting to receive the apology, but the respondent had refused to apologise which had escalated the conflict and brought the appellant into disrepute.
[21] In Timothy[[2010] ZALAC 29; [2010] 8 BLLR 830 (LAC); (2010) 31 ILJ 1844 (LAC) at 1850.] this Court made it clear that progressive discipline is designed to bring the employee back into the fold, so as to ensure, by virtue of the particular sanction, that faced with the same situation again, an employee would resist the commission of the wrongdoing upon which act the sanction was imposed.
[22]… In conducting himself as he did the respondents conduct had a direct impact on his employment relationship. This was so in that in the face of the opportunity given to him to remediate his behaviour and apologise for it, he refused to do either. The appellant was not obliged either to accept or overlook such repeated misconduct on the part of the respondent, nor to extend any further leniency to him when he had refused to remediate his behaviour. In these circumstances, dismissal was an appropriate operational response to the repeated misconduct committed by him, despite his long service and clean disciplinary record. The decision of the arbitrator that the dismissal of the respondent was fair fell within the ambit of reasonableness required.
Parity principle (consistency)
PA11/16
Burton and Others v MEC for the Department of Health Eastern Cape Province and Others (PA11/16) [2022] ZALAC 101; (2022) 43 ILJ 2284 (LAC); [2022] 10 BLLR 883 (LAC) (5 July 2022)
[28] The parity principle requires that like cases be treated alike which is an element of disciplinary fairness. It applies where there are two or more employees engaged in the same or similar conduct at the same time but only one or some of them are disciplined or where different penalties are imposed. Unfairness flows from the principle that like cases should, in fairness, be treated alike.[National Union of Metalworkers of SA and Others v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) at 1264A-D: National Union Of Mineworkers, obo Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at para 25.]
[30] The other context is where historical inconsistency is raised as a basis to challenge the fairness of the sanction of dismissal.[See Schedule 8 Item 3(6) which reads: The employer should apply the penalty of dismissal consistently with the way in which it has been applied to the same and other employees in the past, and consistently as between two or more employees who participate in the misconduct under consideration.] In this instance, there would be no dispute that what the employee was charged with was indeed valid and proper to constitute misconduct, of which the employee is guilty. However, the issue would be that the dismissal of the employee for such misconduct is inconsistent with the sanction imposed by the employer for similar and related misconduct, in the past, in respect of other employees. In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2010) 31 ILJ 452 (LC) at para 10. (Southern Sun Hotel)], the Court, in this context, said: The courts have distinguished two forms of inconsistency – historical and contemporaneous inconsistency. The former requires that an employer apply the penalty of dismissal consistently with the way in which the penalty has been applied to other employees in the past; the latter requires that the penalty be applied consistently as between two or more employees who commit the same misconduct. A claim of inconsistency (in either historical or contemporaneous terms) must satisfy a subjective element – an inconsistency challenge will fail where the employer did not know of the misconduct allegedly committed by the employee used as a comparator (see, for example, Gcwensha v CCMA & others [2006] 3 BLLR 234 (LAC) at paras 37-38). The objective element of the test to be applied is a comparator in the form of a similarly circumstanced employee subjected to different treatment, usually in the form of a disciplinary penalty less severe than that imposed on the claimant.
[31] The soundness of the principle of parity is that it brings about certainty within the employment sphere. In that way employees would be aware in advance of what the resultant sanction would be in the event of an infraction of a particular rule applicable in the workplace. This of course is not a principle which is cast in stone and is to be applied inflexibly regardless of the peculiarity of a case. In Absa Bank Limited v Naidu and Others[(2015) 36 ILJ 602 (LAC) para 36. (Naidu)] Ndlovu JA stated thus: However, it ought to be realised, in my view, that the parity principle may not just be applied willy-nilly without any measure of caution. In this regard, I am inclined to agree with Professor Grogan when he remarks as follows:[Grogan, Dismissal, Discrimination and Unfair Labour Practices 2nd ed, (Juta 2007) at 273-274.][T]he parity principle should be applied with caution. It may well be that employees who thoroughly deserved to be dismissed profit from the fact that other employees happened not to have been dismissed for a similar offence in the past or because another employee involved in the same misconduct was not dismissed through some oversight by a disciplinary officer, or because different disciplinary officers had different views on the appropriate penalty.
[55] The conduct of the appellants undermined the values of democracy, ethical values and morality. It jeopardised the credibility of Government.
2. The employer is directed to re-employ the applicants.
misconduct: assault
JA75/21
Engen Petroleum Limited v CEPPWAWU and Others (JA75/21) [2022] ZALAC 110 (29 September 2022)
you displayed violent behaviour or a threat of violence by assaulting
[27]…he only reasonable inference is that his conduct was not as aggressive as the employer sought to make it out to be and that he was provoked into behaving as he did.
misconduct: insubordination (not reporting for work when instructed to)
JR 1093/20
Unilever South Africa (PTY) Ltd v NASA Workers obo Ndwambi (JR 1093/20) [2022] ZALCJHB 196 (26 July 2022)
[13] Now when Ndwambi attended to the proceedings at the CCMA in that morning, she knew that her supervisor and a senior in the department that she is employed, are expecting her not only because she is an employee, but are expecting her because of the productivity requirements for that period. Yet again, she decided at twenty past five to simply text the supervisor and say, I am not going to carry out the instruction.
[18] Therefore, the belated argument is unhelpful to the respondents case. The employer, the applicant before me, imposed the sanction of dismissal because of the said misconduct. As indicated earlier, when an employer is being challenged to show the fairness of a dismissal, the other leg to be proven is the appropriateness of the sanction of dismissal.
misconduct: insubordination
JR 1906/19
Independent Risk Distributors SA (PTY) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1906/19) [2022] ZALCJHB 282 (11 October 2022)
[4 The Third Respondent was charged with misconduct, with gross insubordination. The Applicant essentially charged the Third Respondent for challenging and/or undermining the authority of the company’s CEO during a staff meeting which was held on 05 December 2018, by questioning and/or challenging an instruction issued by the CEO whilst in the presence of his colleagues.
[27] In TMT Services and Supplies (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others,[(2019) 40 ILJ 150 (LAC); [2019] 2 BLLR 142 (LAC) para 4.] it was held that the enquiry into the gravity of the specific insubordination considers three aspects: the action of the employer prior to the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee.
[28] The Labour Appeal Court in TMT Services further held that to the extent that insubordination involves a defiance of authority, such a defiance can be proven by a single act of defiance, and that the employers prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled insubordination and addresses operational requirements of the organisation that ensure that managerial paralysis did not occur.[21]
[29] In Sylvania Metals (Pty) Ltd v M.C Mello N.O and others[(JA83/2015) [2016] ZALAC 52 (22 November 2016).], the Labour Appeal Court further held that: Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employers lawful authority. It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employers authority even where an instruction has not been given.[23]
[30] The Court in Sylvania Metals (Pty) Ltd further held that: This Court in Palluci Home Depot (Pty) Ltd v Herskowitz and Others, discussed the fine line between insubordination and insolence, with the latter being conduct that is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting, or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employers authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The sanction of dismissal is reserved for instances of gross insolence and gross insubordination or the wilful flouting of the instructions of the employer.[24]
[31] What is more, the LRAs Schedule 8: Code of Good Practice: Dismissal requires that the defiance must be gross to justify dismissal. This means that the insubordination must be serious, persistent, and deliberate.[J. Grogan Workplace Law 13th ed (Second Impression, 2021, Juta) at 198.]
[35] What is more, its axiomatic that employees do not lose their constitutional rights as guaranteed in the Bill of Rights, such as freedom of expression guaranteed in section 16(1) of the Constitution of the Republic of South Africa, 1996, merely by reason of being in the workplace.
[36] It follows then, based on the foregoing, and having considered the parties submissions, and the law, that the dismissal of the Third Respondent by the Applicant was substantively unfair.
misconduct: conflict or potential conflict of interest
DA 9/21
HOD Sports, Arts, Culture and Recreation- Free State v NEHAWU obo Masekoa and Others (DA 9/21) [2022] ZALAC 113 (18 October 2022)
[27] Employees have a duty of good faith towards their employers. They are required to advance the employers interest and not their own in situations where their interests and that of the employer may clash[ J Grogan Workplace Law 13th ed. at p 193 and the cases cited there.]. A typical example of such a conflict would be where an employee who conducts a business, or who in his personal capacity and for his own benefit, enters into a deal relating to the employers business. In Robinson v Randfontein Estates Gold Mining Co Ltd[1921 AD 168 at 177-178.] Innes CJ expressed the position as follows: Where one man stands to another in a position of confidence involving a duty to protect the interests of that other, he is not allowed to make a secret profit at the others expense or place himself in a position where his interests conflict with his duty. The principle underlies an extensive field of legal relationship… the doctrine is to be found in the civil law (Digest 18.1.34.7), and must of necessity form part of every civilised system of jurisprudence.[Volvo (Southern Africa) (Pty) Ltd v Yssel [2010] 2 BLLR 128 (SCA) at paras 13 and 16 where it was held that while certain relationships have come to be clearly recognised as encompassing fiduciary duties there is no closed list of such relationships. In that particular case it was held to apply to an employment relationship.]
[35] The transgression was serious enough to justify Ms Masekoas dismissal. She was in a position of trust and breached that trust.[7]
misconduct: obstructing a view of a camera
JA72/2021
Reinhardt Transport v National Bargaining Council for the Road,Freight and Logistics Industry and Others (JA72/2021) [2022] ZALAC 115 (18 October 2022)
[22] The version of the third respondent that he covered the drivecam because he was taking a bath, is contrived. He was told by Panuel, the trainer, that he was not to cover the drivecam but to simply have the bath in the bed compartment; to draw the curtain, isolating that section, in order to take a bath privately. Covering the drivecam for a reason that is found wanting is serious enough to warrant dismissal. This is one of those cases where an intolerable relationship between an employer and an employee flows from the conduct. The Constitutional Court put it thus: It cannot be primarily the duty of the employer to explain the intolerability that flows effortlessly from the obviously repugnant conduct of the employee.[South African Revenue Service v Commission For Conciliation, Mediation and Arbitration and Others 2017 (1) SA 549 (CC) (SARS) at para 36; and Sidumo at para 43]
misconduct: tested positive for dagga
JA 90/2021
SGB Cape Octorex (PTY) Ltd v Metal and Engineering Industries Bargaining Council and Others (JA 90/2021) [2022] ZALAC 118 (18 October 2022)
[20] In my view, the commissioner failed to recognise that the employer is entitled to set its own standards to enforce discipline in its workplace. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and others[(2006) 27 ILJ 2076 (SCA) at para 46.], Cameron JA, as he then was, said: The mere fact that a CCMA commissioner may have imposed a different sanction does not justify concluding that the sanction was unfair. Commissioners must bear in mind that fairness is a relative concept, and that employers should be permitted leeway in determining a fair sanction. As Myburgh and Van Niekerk suggest: ‘The first step in the reasoning process of the commissioner should be to recognise that, within limits, the employer is entitled to set its own standards of conduct in the workplace having regard to the exigencies of the business. That much is trite. The employer is entitled to set the standard and to determine the sanction with which non-compliance with the standard will be visited.'[(2000) 21 ILJ 2145 at 2158.]
[21] In my view, the decision of the appellant to dismiss the employee was fair, taking into account the nature of its business and similar sanctions which have been imposed on other offending employees.
misconduct: sexual harassment
PA9/2018
Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others (PA9/2018) [2022] ZALAC 119 (10 November 2022)
[42] In Santam Bpk v Biddulph,[12] the Learned Judge of Appeal said: the proper test is not whether a witness is truthful or indeed reliable in all that he says, but whether on a balance of probabilities the essential features of the story which he tells are true (cf R v Kristusamy 1945 AD 549 at 556 and H C Nicholas ‘Credibility of Witnesses’ (1985) 102 SALJ 32 especially at 32 – 5).
[44] When regard is had to the evidence of the employee, her evidence that she was sexually harassed by Mr Fredericks is not only internally contradictory but also externally contradictory.
[45]…The contradictions between the testimony of the employee at the grievance hearing and that at the arbitration hearing, on this aspect, put the reliability of her evidence into question.
[46] The veracity of the employees evidence must also be tested against the documentary evidence presented at the arbitration. Although Mr Fredericks was also not a satisfactory witness, that does not detract from the fact that the employee had to prove that sexual harassment took place. On the probabilities, the employees testimony that Mr Fredericks took enormous risks by sexually harassing and assaulting her in the vicinity of their colleagues and covering her mouth to stop her from screaming out, and that she resisted his unwelcome conduct from the very outset in February 2015, is implausible when regard is had to the friendly and almost flirtatious text messages which she sent to Mr Fredericks.
[49] What’s even more telling is that in her response to emails from Mr Fredericks the employee used affectionate expressions like ok my love honey and sweetie. When confronted with these affectionate words which she used, she stated that she used them because it was the language of Mr Fredericks. These written conversations, in my view, are inconsistent with the response of a party who is being subjected to unwelcome sexual advances by her manager.
[58] In casu, the employee did not resist the conduct. She did not walk away but, knowing that this conduct would persist, she kept on responding to the call by Mr Fredericks to his office. She did not immediately seek advice from a friend or a fellow employee. She waited for a period of approximately three months and only raised the complaint with her boyfriend in July and, thereafter with Mr Witbooi on the suggestion of her boyfriend. Despite being urged by her boyfriend to report the harassment to her employer, she waited for a further four months before lodging a grievance with the employer. An explanation as to why it was not raised earlier was not forthcoming from the employee. She, furthermore, used affectionate and seductive language in her communications with Mr Fredericks which, on the probabilities, indicate that the sexual conduct was not unwelcome.
[60] In my opinion, there was insufficient evidence before the commissioners that the employee was sexually harassed by Mr Fredericks and that such harassment constituted unfair discrimination. On a consideration of the totality of the evidence which served before the commissioners, it cannot be found that the employee was sexually harassed by Mr Fredericks and that the employer was liable for such conduct in terms of section 60 of the Act. Importantly in this regard, section 60 does not create automatic liability on the part of the employer for acts of discrimination including sexual harassment by their employees. Certain requirements must be met. The first being that, the act of harassment must be immediately brought to the attention of the employer. As alluded to above, the employee patently failed to satisfy this requirement.
misconduct: doing work for a competitor and that the applicant had not been given permission to work for that company.
JR 1874/2020
Jojo v Maduludi (PTY) LTD and Others (JR 1874/2020) [2022] ZALCJHB 320 (16 November 2022)
[9]…What the applicant does not address is the fact that he was formally engaged in another business at all.
[2] The applicant was dismissed on four charges of misconduct in circumstances where the first respondent had been unable to pay the remuneration of its employees, including the applicant. On 23 August 2019, the applicant was asked to return to work (having been absent from work since 18 February 2018) to attend to a particular project. The applicant demanded payment of at least 70% of his unpaid remuneration before he would comply with this instruction. During November 2019, the first respondent discovered that the applicant was working for another company, Cingba, owned by the applicants brother and which had previously been used as a subcontractor by the first respondent. The first respondent took the view that the company concerned was a competitor and that the applicant had not been given permission to work for that company.
misconduct: absenteeism
JR2081/18
Harmony Gold Mining Company Limited v Commission for Conciliation Mediation and Arbitration and Others (JR2081/18) [2022] ZALCJHB 321 (17 November 2022)
employee dismissed for absenteeism employer questioning the validity of a sick note submitted by the employee by alleging that it had been tempered with employee had history of being sick employer failing to approach the doctor who issued the sick note for a report on the employees medical status during the period of absence from work dismissal found to be unfair by the Commissioner reasonableness of award
misconduct: dismissal of the individual employees was mainly informed by their failure to succeed in their unfair labour practice claim /giving false evidence
JA104/2021
Buscor (PTY) Ltd v Ntimbana and Others (JA104/2021) [2022] ZALAC 121 (29 November 2022)
dismissal of the individual employees was mainly informed by their failure to succeed in their unfair labour practice claim
misconduct: refusing to carry out a lawful and reasonable instruction to keep person inside the interview room
JA105/2021
Bidvest Protea Coin (PTY) Ltd v SATAWU and Others (JA105/2021) [2022] ZALAC 122 (29 November 2022)
[9]… it was found that the appellant had not proved that a lawful instruction had been issued to the employee. In addition, it was found that the employee was not entitled to detain Mr Kriek against his will in that he was not a peace officer who could execute a warrant of arrest; and that no crime had been committed or attempted in his presence which would have allowed the employee to arrest Mr Kriek without a warrant.
[19]…What the appellant did not appreciate in its approach to the matter was that, not having been arrested, Mr Kriek was legally entitled to leave the clients premises; and the appellants contention that the employee committed misconduct in failing to prevent Mr Kriek from doing so fails to appreciate as much. The suggestion that, in failing to call for backup to prevent Mr Kriek’s departure, the employee breached the instruction given to him and was insubordinate, equally fails to appreciate that Mr Kriek was entitled to leave the premises. It follows that since the instruction did not concern the arrest of Mr Kriek, the employee did not commit misconduct when he failed to call for backup or prevent Mr Kriek from leaving the premises.
Doctrine of common purpose: proof of common purpose
CCT 233/21
Numsa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd (CCT 233/21) [2022] ZACC 30; (2022) 43 ILJ 2269 (CC) (22 August 2022)
The striking employees surrounded and assaulted him severely…Job cards used at workstations also helped identify employees who were in the morning shift. Reliance was also placed on photographic and video material that depicted the events on the day. …[29] I have not gone against a single fact not conclusion that the Labour Appeal Court found to have been established. To recapitulate, the 40 employees who were on duty were not at their workstations. They were part of a group of employees that went to the canteen to be addressed by Mr Steffens. They were part of a group that left the canteen and went towards the offices after Mr Steffens had not arrived at the canteen. As they went towards the offices, the employees were marching, dancing and singing and carrying three placards. On arrival next to the offices, Mr Steffens came out and was severely assaulted, but only 12 of the employees were positively identified to have taken part in the assault. The singing and dancing were continuing whilst Mr Steffens was being assaulted. None of the striking employees came to Mr Steffens rescue. The 40 employees were still part of the group when the assault was committed.
[10]…appeal was in respect of only Mr Mokoena and the 40 employees who were not identified by means of the evidence discussed above. NUMSAs stance was that the dismissals were substantively unfair. The appeal was unsuccessful.
The appeal was unsuccessful. The Labour Appeal Court first sought to place the appellant employees at the scene by saying: There was no evidence that it was only 107 of the [employees], in respect of whom the appeal is no longer pursued, who were present on the scene of the assault. The undisputed evidence was that all the appellant employees had left their workstations and participated in the strike. The employees wanted to speak to Mr Steffens in the canteen and, when he did not arrive, they moved to the main gate and towards his office with demands that included his removal.[NUMSA obo Dhludhlu Marley Pipe Systems SA (Pty) Ltd [2021] ZALAC 13; (2021) 42 ILJ 1924 (LAC); [2021] 9 BLLR 894 (LAC) (Labour Appeal Court judgment) at para 21.][11] The Labour Appeal Court then held that common purpose had been established because[t]here was no evidence that any of the 148 . . . employees distanced him- or herself from the actions of the group and the clear evidence was that the assault on Mr Steffens was perpetrated by members of the group of striking employees. None of the employees intervened to stop the assault and assist Mr Steffens, nor did they disassociate in any way from the assault before, during or after it. In fact, the undisputed evidence was that the striking employees celebrated the assault after the fact. It followed in the circumstances, having regard to the proven facts, that the inference drawn that all employees were involved in or associated themselves with the assault became the most probable and plausible.[][12] It added: From the evidence before the Labour Court, it is clear that the appellant employees associated with the actions of the group before, during or after the misconduct. This included Mr Mokoena who, although he arrived on the scene after the assault, through his conduct associated directly with the actions of the group. It also included the employees who, in [the opinion of Ms Crowie, were] . . . bystanders. There was no dispute that these employees were present at the scene and associated with the events of the day. They too took no steps to distance themselves from the misconduct either at the time of, during or after the assault. Instead, they persisted with the denial, both in their pleaded case and the evidence of Mr Ledwaba, that any assault had occurred and refused the opportunity to explain their own conduct in relation to it.[6]
[14]… Whilst purporting to apply extant principles of the doctrine of common purpose, the Labour Appeal Court, in fact, created new principles. It insists that in order not to be adjudged guilty under the doctrine of common purpose, a bystander must take positive steps to distance themselves from the act of the actual perpetrator. And it holds that employees whom Ms Crowie, the respondents witness, described as bystanders ought to have so distanced themselves. It also requires of a bystander to intervene and protect another from physical harm. These implicate the substantive fairness of the dismissal, thus raising constitutional issues under section 23 of the Constitution. Booysen v Minister of Safety and Security [2018] ZACC 18; 2018 (6) SA 1 (CC); 2018 (9) BCLR 1029 (CC) at para 50 and General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) BCLR 919 (CC) at para 38.
[17] First, the law. Let me start with Mgedezi where Botha JA held: In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of [common purpose], only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea [criminal intent]; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.[S v Mgedezi [1988] ZASCA 135; 1989 (1) SA 687 (A) at 705I-706B.]
[18] This is a correct rendition of the law in a situation where the person sought to be held liable was present at the scene. We know from Dunlop[10] that, to attract liability or a holding of complicity, presence at the scene is not a requirement. Although what was held in Dunlop was in the context of the concept of derivative misconduct, it is of relevance here. Here is what Froneman J held: Inferential reasoning in establishing actual participation or association in the primary misconduct was sufficient in FAWU, Chauke and RSA Geological Services (Review). The difficulty seems to be with the emphasis placed on the necessity of direct presence at the scene of the misconduct, as is also evidenced by the arbitrators and Labour Courts approach here. Evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required.[National Union of Metalworkers of South Africa obo Khanyile Nganezi v Dunlop Mixing and Technical Services (Pty) Limited [2019] ZACC 25; 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC) at para 46.]
[24] I accept the Labour Appeal Courts finding, and for the reasons it gives, that the probability is that the 40 employees were at the scene when Mr Steffens was assaulted. That said, it is a fact that they were never identified. Not having been identified, they were never seen doing anything. Implicit in what the Labour Appeal Court holds is that to escape liability for the assault these employees should have intervened to stop the assault and should have dissociated themselves in [some] way from the assault before, during or after it.[NUMSA obo Dhludhlu Marley Pipe Systems SA (Pty) Ltd [2021] ZALAC 13; (2021) 42 ILJ 1924 (LAC); [2021] 9 BLLR 894 (LAC) (Labour Appeal Court judgment) at para 21.] The Labour Appeal Court does not explain where these obligations come from. At a moral level, one may have to intervene and save a fellow human being from physical harm. But I am not aware that there is a general legal obligation to do so. And I do not understand the basis of imposing an obligation to dissociate oneself from acts of violence that one has not been shown to have participated in. Does this obligation require of one to depart from the scene? Does it mean there can be no bystanders or spectators? If so, what is the basis for that? There is no basis whatsoever for the imposition of such an obligation. As I will show, this is not in conflict with Oak Valley Estates.
[36] Sympathetic though I am to the difficulties facing employers, individual complicity in the commission of acts of violence must be established. That is what the principles on common purpose have always required. If it were to be otherwise, the law would be a cruel instrument that attaches guilt and imposes sanction on the innocent. Association in complicity for purposes of common purpose must include having the necessary intention in relation to the complicity.[29]
[37] In sum, the principles applicable to common purpose have not been satisfied. Thus, there was simply no basis for holding the 41 employees guilty of assaulting Mr Steffens. The dismissals on the basis of this finding of guilt were substantively unfair.
misconduct: did not apply discipline consistently, meaning reinstatement was based on the parity principle.
JR 1964/20
Pharma-Q Holdings (Pty) Ltd v National Bargaining Council for The Chemical Industry and Others (JR 1964/20) [2023] ZALCJHB 16 (31 January 2023)
Damage to machine – Using incorrect procedure
Colleague not disciplined despite also violating policy in attempting to help – Company contending that employee not showing remorse and that trust relationship broken – Dismissal not appropriate and reinstatement ordered with a final warning.
[10] Before an arbitrator finds that reinstatement is appropriate, there must be an inquiry made in line with the provisions of section 193(2), and the presiding arbitrator would have to give brief reasons for his conclusion as enjoined by section 138(7)(a) of the LRA. If one reads arbitration records the reasons provided must be apparent[House of Flowers and others v Radebe and others 4 BLLR 366 (LAC) at para 16).], because in overturning a decision of an employer ,by finding that the dismissal was unfair, he is applying “[an outsider]’s sense of fairness [which] what must prevail and not the employer’s view”.[Sidumo and Another v Rustenburg Platinum Mines Ltd and others [ 2007] 12 BLLR 1097 (CC) at paras 75 and 78. Cf. SARS v CCMA and Others 2017 (2) BCLR 241 (CC) at para 44-5.]
“[14] In Booi v Amathole Municipality[2022 (2) BCLR 265 (CC) at para 40.] the Constitutional Court held thus in relation to the question of continued employment:
“It is accordingly no surprise that the language, context and purpose of section 193(2)(b) dictate that the bar of intolerability is a high one. The term “”intolerable”” implies a level of unbearability and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in section 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to section 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.””(Own emphasis)
“
“[15] Commenting on the provisions and application of inconsistency in dismissal dispute matters, the Labour Appeal Court (LAC) in Absa Bank Limited v Naidu and Others[[2015] 1 BLLR 1 (LAC)] held that is not the only deciding factor , as it said:
“[42] Indeed, in accordance with the parity principle, the element of consistency on the part of an employer in its treatment of employees is an important factor to take into account in the determination process of the fairness of a dismissal. However, as this court say, it is only a factor to take into account in that process. It is by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss…The parity principle was never intended to promote or encourage anarchy in the workplace. As stated earlier, I reiterate there are varying degrees of dishonesty and, therefore, each case will be treated on the basis of its own facts and circumstances.”””
Sexual Harassment- Manager sending pornographic material to junior employee – Had been asking employee on dates – Apology and claim that the material sent in error – Sexual harassment offending constitutionally guaranteed rights – Dismissal fair.
insubordination
JR 2266/17
AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17) [2023] ZALCJHB 23; (2023) 44 ILJ 1046 (LC); [2023] 5 BLLR 403 (LC) (13 February 2023)
“[23] In Palluci Home Depot (Pty) Ltd v Herskowitz and Others[(2015) 36 ILJ 1511 (LAC) at para [22].] (Palluci), the LAC, dealing with the appropriateness of a sanction of dismissal in cases of insubordination, observed that:
‘[22] … acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. A failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her. Thus, unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.’ (Own emphasis)
[24] It was further stated that:
‘[39] The sanction of dismissal was, regardless of whether the conduct constituted insubordination or insolence, manifestly incongruent and unfair. The appellant’s own code of conduct recommends a written warning for the first offence of impertinence/insolence, and a final written warning for the second. Dismissal is only recommended for the third offence of insolence. Similarly, item 3(4) of the Code of Good Practice for Dismissals in Schedule 8 to the LRA (the Code of Good Practice) deems it inappropriate for an employer to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Gross dishonesty or wilful damage to the employer’s property, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination are listed as examples of serious misconduct, subject to the rule that each case must be judged on its own merits. This, the commissioner, similarly failed to apply his mind to.’[] (Own emphasis)”
“[25] It also trite that the enquiry on the appropriateness of the sanction entails a consideration of the totality of circumstances which, inter alia, include the importance of the rule breached; the reason the employer imposed the sanction of dismissal; the basis of the employee’s challenge to the dismissal; the harm caused by the employee’s conduct; whether additional training and instruction may result in the employee not repeating the misconduct; the effect of dismissal on the employee; and his or her long-service record.[10]
[26] In the present case, the commissioner failed to apply his mind to the fact that the insubordination was the first offence and was not accompanied by insolence. There was no evidence that the applicant employees acted wilfully and repeatedly. It is apparent that their conduct was informed by the ill-considered belief that they were protected by section 23 of the MHSA. Obviously, a progressive disciplinary sanction in a form of a warning or final written warning could have availed.”
misconduct: dereliction of duty
JR 1924/19
Clicks Retailers (Pty) Ltd v Madikwe and Others (JR 1924/19) [2023] ZALCJHB 67 (14 March 2023)
[11] The dismissed managers were dismissed for dereliction of duty. A dereliction of duty means that an employee wilfully, wantonly or negligently failed to perform his or her duties or performed them in a culpably inefficient manner. In order to establish this form of misconduct, an employer must, in clear terms, establish the duties of an employee charged and thereafter present evidence which proves on a balance of probabilities that the employee derelicted those established duties. Where an employer alleges grossness, the suggestion is that the dismissed manager failed to perform purposefully.
“[12]…Having acknowledged the allegation, Mbileni reached the following reasonable conclusion:
“[28] I cannot, however, ignore the fact that they were still subordinates to the Store Manager and they were working under her instructions and control. The fact that she was the Store Manager meant she assumed ultimate control in terms of her position and status. In spite of the responsibilities of the applicants which were outlined in the advert for the position, she still had the power and control over what applicants could or could not do in the store.
[33] I don’t see how the applicants were expected to observe the Standard Operating Procedures and also comply with the instruction of their Superior (which was not unlawful)””
misconduct: only person with the sole key to the safe
JR260/2013
Compass Group SA (Pty) Ltd v Van Tonder and Others (JR260/2013) [2023] ZALCJHB 103 (12 April 2023)
[22] In the first place, he relied on Ehler’s conclusion that there was a miscount. His conclusion that there was ‘an existing cartel’ was an elaborate finding based on the evidence that the incident in question was not the first time money went missing at Compass, which was a management and control issue. Van Tonder himself testified about a long standing problem of money disappearing.
misconduct: debarred from practising in the financial services industry…misconduct amounted to a failure to disclose to his employer the receipt of payments made into his personal account and the subsequent payments made by him in respect of Dan’s wedding expenses. Regardless of the existence of any personal benefit to the employee, this is by definition serious misconduct in a business that is regulated by the FAIS Act, and in which a premium is placed on the honesty and integrity of employees.
JR 2055/2020
King Price Insurance Company Ltd v Vather and Others (JR 2055/2020) [2023] ZALCJHB 101 (17 April 2023)
[5]…It was not in dispute that the employee was a ‘representative’ for the purposes of the FAIS Act, nor was it in dispute that the employee could not act as a representative of the applicant if he was debarred in terms of section 14 of the Act. It was also not in dispute that the applicant, as an authorised financial services provider, was obliged to be satisfied that all of its representatives were competent to act in that capacity. In these circumstances, the applicant submits that the arbitrator failed to have regard to the fact that the employee’s debarment had the consequence that he was precluded from working in the finance industry.
“Constitutional Court in Sidumo & another v Rustenburg platinum mines Ltd & others [2007] 12 BLLR 1097 (CC). The first is from the majority judgment, per Navsa AJ:
In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason in employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.
To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair…
And further, in the judgment by Ngcobo J:
What this means is that the commissioner… does not start with a blank page and determine a fresh what the appropriate sanction is. The commissioner’s starting point is the employer’s decision to dismiss. The commissioner’s task is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss is fair.
In answering this question, which will not always be easy, the commissioner must pass a value judgment. However, objective the determination of the fairness of a dismissal might be, it is a determination based upon the value judgment. Indeed, the exercise of a value judgment is something about which reasonable people may readily differ.
But it could not have been the intention of the lawmaker to leave the determination of fairness to the unconstrained value judgment of the commissioner. Were that to have been the case, the outcome of the dispute could be determined by the background and perspective of the commissioner… yet fairness requires that regard must be had to the interest both of the workers and those of the employer, and this is crucial in achieving a balanced and equitable assessment of the fairness of the sanction.
These considerations imply certain constraints on commissioners. However, what must be stressed is that having regard to these considerations does not amount to a difference to the employer’s decision in imposing a particular sanction …[W]hat is required of a commissioner is to take seriously the reasons of the employer establishing the rule and prescribing the penalty of dismissal for breach of it… The commissioner should respect the fact that the employer is likely to have greater knowledge of the demands of the business than the commissioner.
However, such respect for the employer’s knowledge is not a reason for the commissioner to defer to the employer. The commissioner must seek to understand the reasons for particular rule being adopted and its importance in the running of the employer’s business and then weigh these factors in the overall determination of fairness.”
[15]…construction of the transactions was an effort by Dan to launder money by giving cash to his team managers, for them to present that cash to him as wedding gifts. This is patently misconduct that is sufficiently serious to warrant the penalty of dismissal.
misconduct: gave her a hug, a squeeze, and a kiss on her forehead, and further told her that he ‘loved’ her.
JR 1775/19
Diholo v Gauteng Department of Education and Others (JR 1775/19) [2023] ZALCJHB 117 (2 May 2023)
[24]… This is so in that unwelcomed hugging with a squeeze, accompanied by words such as ‘I love you’ cannot be sugar-coated to amount to anything other than sexual innuendo or unacceptable conduct contemplated either within the meaning of section 17(1)(b) and (c) or of section 18(1)(q).
33] Other than the above, and coming back to the facts of this case and the grounds of review sought to be relied upon, I am on the whole, satisfied that the evidence against the applicant demonstrated an individual who had committed misconduct against a learner, and who totally failed to live to the principles of being a protector and guardian expected of a paterfamilias in his position vis-à-vis the Complainant.
misconduct: dishonesty, informed two of her fellow employees at the applicant that she had resigned from her employment with the applicant, when this was as far as the applicant was aware not the case.
JR 2053 / 20
Trinity Telecoms (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 2053 / 20) [2023] ZALCJHB 116 (3 May 2023)
“[31] But even if the version of the applicant was to be accepted, the question simply remains – was the third respondent dishonest? The second respondent found that she was not, because she showed no wilful intention to deceive her employer, even if the applicant’s version as it stands was to be accepted. In Department of Education: Mpumalanga Province and Others v Mthala NO and Others[JR2036/17) [2020] ZALCJHB 202 (21 April 2020) 26] the Court appositely said: ‘… Dishonest intent is a matter to be determined by the evidence. …’. What constitutes dishonesty was described in Nedcor Bank Ltd v Frank and Others[(2002) 23 ILJ 1243 (LAC).], where the Court held that: ‘Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. …’.[14] The Court in Nedcor Bank went further and referred with approval to the Canadian case of Lynch & Co v United States Fidelity & Guaranty Co [1971] 1 OR 28 (Ont SC) where it was held that: ‘… “”Dishonest”” is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.’
“
“[32] The LAC in SA Society of Bank Officials and Another v Standard Bank of SA and Others[(2022) 43 ILJ 1794 (LAC) at para 17.] more recently considered the aforesaid ratio in Nedcor Bank and came to the following conclusion:
‘Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal …’”
“[33] The Court in SA Society of Bank Officials supra further considered the notion that in order for an employer to successfully show that the employee was dishonest, it had to prove that there was a dishonest intention or an intention to deceive on the part of the employee. The Court adopted the view that: ‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception …’,[16] and concluded that:[17]
‘The courts have frequently upheld dismissal for dishonesty. However, it is not an invariable rule that offences involving dishonesty necessarily incur the supreme penalty of dismissal. The facts of every case must be assessed and the mitigating features taken into account. …’”
“[34]…does that even show an intention on the part of the third respondent to deceive the applicant. I have difficulty in understanding how it can be said this was the case. The third respondent did not tell her employer that she had resigned and was looking at a counter offer to stay. She told that to her fellow employees….I believe that even if it can be said she did this, it was at best some kind of grandstanding or boasting towards her fellow employees to puff up her own feathers and show she was important and valuable to extent that she was readily employable by another employer. These kinds of statements may be, as described in Nedcor Bank supra, ‘foolish’ or even ‘reckless’ conduct, but it is certainly not dishonest. As reasoned in Austin-Day v Absa Bank Ltd and Others[2022 JDR 2061 (LAC) at para 39.], where the Court found that dishonesty did not exist:
‘There is no evidence that the appellant acted in bad faith or that by her actions, she exposed the bank to any material risk …’”
[35] In simple terms, where the third respondent may lie to her fellow employees about her status or position or the like, it does not follow that she was dishonest towards the applicant as her employer, in the sense that it constitutes misconduct vis-à-vis the applicant as her employer. The applicant has to show more. The applicant must prove a nexus between these lies, and a willingness on the part of the third respondent to deceive it as her employer. In simple terms, it must be aimed at the applicant as her employer.
“[44] The applicant made much of the destruction of the trust relationship. But if no misconduct can be proven in the first place, the issue of the break down in the trust relationship as a consideration does not arise. The existence or not of the trust relationship is only a relevant consideration if misconduct is proven to exist in the first place. Otherwise, an employee could be dismissed simply because an employer decides that it no longer trusts the employee, despite the employer not being able to show that the employee did anything wrong. However, and where it comes to the issue of an appropriate remedy to be afforded to an employee where an arbitrator does find the dismissal is substantively unfair in the sense that misconduct was not proven, the issue of whether a continued employment relationship would be intolerable would indeed still need to be considered. This is because of the provisions of section 193(2)(b) of the LRA.[24] In Booi v Amathole District Municipality and Others[25] the Court held:
‘… It cannot be said then, that just because the charges of misconduct could not be proven, the intolerability of a continued employment relationship could not still be examined. …’”
misconduct: falsified or fraudulent parking permit
JR 1436 / 2020
Mkhonto v Mphahluli N.O and Others (JR 1436 / 2020) [2023] ZALCJHB 134 (10 May 2023)
[71] Evidently, the cumulative effect of all the evidence is that on a balance of probabilities, there is no other explanation as to how Mr Mkhonto had accessed the Respondent’s premises for which a parking permit was required. The reasonable inference from the evidence presented is that Mr Mkhonto indeed accessed the Respondent’s premises by using a permit. The undisputed evidence was that he never applied for a permit, he did not qualify for a permit and a valid permit was not issued to him. The only inference is that he used a permit which was fraudulent.
misconduct: gross negligence
JR2614/19
Bidvest Steiner v Commissioner Lourens NO and Others (JR2614/19) [2023] ZALCJHB 168 (23 May 2023)
“[9] When the word “gross” is annexed to any form of misconduct all it implies is that the misconduct is serious. Grammatically, the word gross especially in wrongdoing means something that is obviously unacceptable. In my view the definition of gross negligence provided by the erudite Scott JA in the matter of Transnet Ltd t/a Portnet v MV Stella Tingas[[2003] 1 All SA 286 (SCA) at 290-1] is not one that would generally apply in an employment context. It is one that would apply in the delictual context.
“
“[10] That notwithstanding, one of the key findings that Lourens made which relates to the essential allegations levelled against Snyman was when Lourens concluded thus:
“246 I therefore find that the applicant is indeed guilty of failing to exercise a degree of care as expected of her, in that she failed to ensure that there was control over ad hoc tickets in her branch.””
[15] In the circumstances a reasonable decision-maker would not have interfered with the sanction of dismissal in the circumstances where Snyman made herself guilty of serious failures or failures of an egregious degree as reasonably found by Lourens.
constructive dismissal: she was being forced to sign an affidavit in respect of matters that were outside of her sphere of responsibility.
JR 948/2021
Hollard Insurance Company Ltd v Keta and Others (JR 948/2021) [2023] ZALCJHB 157 (24 May 2023)
“[19] In so far as the test for the existence of a constructive dismissal is concerned, the locus classicus remains Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) where the court said the following:
When an employee resigns or terminates the contract as a result of constructive dismissal such employee is in fact indicate the situation has become so unbearable that the employee cannot fulfil what is the employee’s most important function, namely, to work. The employee is in effect saying that he or she would have carried on working indefinitely had the unbearable situation not been created. She does so on the basis that she does not believe that the employer will ever reform or abandon the pattern of creating an unbearable work environment. If she is wrong in this assumption and the employer proves that her fears were unfounded then she has not been constructively dismissed and her conduct proves that she has in fact resigned.”
20] It is also well-established that the test for proving a constructive dismissal is an objective one. The conduct of the employer must be such that viewed objectively, the employee could not reasonably be expected to continue in employment.
[22] It should be recalled that what is commonly referred to as a ‘constructive dismissal’ is established by section 186(1)(e). The heading to that section reads ‘Meaning of dismissal and unfair labour practice’. In other words, once the requirements set out in paragraph (e) are met, it means no more than that the applicant has succeeded in establishing the existence of a dismissal. For an unfair dismissal to be established, it remains for the employer to discharge the onus that the dismissal was fair. These are discreet enquiries, and while in theory there may not be much scope for an employer to establish that a dismissal in the circumstances described in paragraph (e) is fair, the prospect of a fair dismissal should not be disregarded. For example, in WL Ochse Webb & Pretorius (Pty) Ltd v Vermeulen (1997) 18 ILJ 361 (LAC), the LAC held that an employee who resigns in circumstances that amount to a constructive dismissal may nonetheless be fairly dismissed.
[23] In the present instance, as I have indicated, the arbitrator tersely concluded ‘There was constructive dismissal’ and went on to make an award of compensation. In doing so, the arbitrator failed to engage with the second leg of the enquiry, and interrogate the fairness of the dismissal that he found to have been established. In doing so, the arbitrator misconceived the nature of the enquiry and his award stands to be reviewed and set aside on this basis alone
[24] In any event, in my view, the arbitrator came to an incorrect conclusion. The evidence does not disclose that objectively, and despite the employee’s subjective belief to the contrary, the applicant had no intention of recognising and addressing the concerns raised by the employee. In these circumstances, it cannot be said that the applicant made continued employment intolerable for the employee.
[29] The arbitrator further overlooked the significance of the grievance hearing and the recommendations made by Janzen. The outcome of the hearing substantially addressed the employee’s concerns, and it is difficult to appreciate what more the applicant could have done in the circumstances.
tested positive for alcohol
JR312/2020
Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (JR312/2020) [2023] ZALCJHB 150 (29 May 2023)
[5] Mabesele testified that she administered the Lion Alcometer breathalyzer test and that it indicated a positive result, with a blood alcohol content being 0.013%. The applicant then led the evidence of a chemical pathologist, a Dr Jaco Broodryk. He testified that a blood sample drawn from the employee was sent to Ampath Laboratory to test for the presence of alcohol in the employee’s blood. The method used to determine the blood alcohol content in the sample was a plasma ethanol test, which cannot test for alcohol below 0.010g/dl. The report issued by the laboratory was negative i.e. it indicated that the employees blood sample had less than 0.010 g/dl alcohol content. Broodryk testified that the blood test was more accurate than a breathalyzer test, and that breathalyzer tests may be false in certain circumstances, for example, when the person tested had not eaten for more than eight hours, or eaten any substance with a yeast content. In his opinion, the result of the test performed did not mean that the employee did not have any alcohol at all in his blood, it simply meant that there was no blood alcohol content exceeding 0.010 g/dl, but for all clinical purposes, the result was negative.
[11] The applicant submits that the applicable policy, being one of zero tolerance, did not mean that it was necessary for the employee to be intoxicated for there to be a breach of the workplace rule. Further, the applicant submits that the nature of the applicant’s business justifies the zero tolerance rule, and that it is not incumbent on the applicant to demonstrate that the employee was intoxicated or that he was unable to perform his contractual duties at the time. That was not the allegation for which the employee was dismissed; he was dismissed for contravening the zero tolerance rule.
[17]… Broodryk also confirmed that a breathalyzer test is prone to producing false positive results. To the extent that the applicant challenges the arbitrator’s interpretation of the evidence relating to the inability of any blood test to measure any reading below 0.009 g/dl, it does not necessarily follow, as the applicant submits, that the arbitrator misdirected himself in determining the balance of probability. It is not in dispute that Broodryk testified that the employees blood alcohol content could have been between 0.000 g/dl and 0.009 g/dl, given that a blood test could not test for blood alcohol content below 0.010 g/dl. On Broodryk’s evidence, it was possible that the employee’s blood alcohol level could have been 0.000 g/dl. The applicant bore the onus of establishing that there was alcohol in the employee’s blood stream. The employee himself did not contend that Broodryk’s evidence definitively established that there was no alcohol in his bloodstream, but, by the same token, that evidence did not serve to prove that there was any alcohol in the employee’s bloodstream.
[18] In the absence of any reviewable irregularity in the arbitrator’s assessment of the evidence, that ground for review stands to be dismissed. Further, on an assessment of all of the evidence, the outcome of the arbitration proceeding, i.e. that the applicant had failed to establish the misconduct for which the employee was dismissed, falls within a range of decisions to which a reasonable decision-maker could come on the available evidence.
deemed dismissal in terms of section 17(3)(b) of the public Service Act, 1994
JR 2482/19
NEHAWU obo Ngomane v Department of Employment and Labour and Others (JR 2482/19) [2023] ZALCJHB 174 (8 June 2023)
“[4] Provisions such as section 17(3) are to be used sparingly, and in circumstances where the employer is unaware of the whereabouts of the absent employee (see MEC Education Western Cape Government v Jethro & another NNO (2019) 40 ILJ 2318 (LAC), in relation to a similar provision in section 14 of the Employment of Educators Act). In the same judgment, the court said the following:
[43] The remaining question is whether the appellant’s decision thereto there was no good course where reinstatement is reviewable. Various factors are relevant in determining whether good cause exists for reinstatement under s 14 (2) of the EEA. In the interests of flexibility, it is inadvisable for courts to define the requirements of good course to categorically. There is no numerus clausus of factors. Irrelevant considerations include: (i) the reasons for the absences; (ii) the duration of the absences; (iii) the conduct of the educator prior and subsequent to his or her deemed discharge; (iv) the impact of the absence on the employer; (v) the whereabouts of the educator during the period of absence; (vi) the practicality and tolerability of a continued employment relationship; and (vii) the availability of alternative processes and solutions to the problem that led to the educator’s absence.
And further:
[45] … The applicable principle is rather that the employer in exercising the discretion under s 14(2) of the EEA (in the light of the fact that the deemed dismissal often would not have been preceded by any hearing or inquiry in which the educator participated) must evaluate all the circumstances, to determine if the continuation of the employment relationship is indeed to become intolerable as a consequence of the educator’s absence. Fairness and proportionality require deliberation of the appropriateness of permanently severing employment relationship. The discretion must be exercised with the benefit of informed hindsight. This obliges the employer to investigate and reflect fully on the reasons for the absence of the alternatives to dismissal, which may not have been considered previously by reason of the operation of the deeming provision.”
[11]…The enquiry into the appropriateness of reinstatement is much more than that – it extends to the proportionality of any reliance on section 17(3), the extent of any incapacity that the applicant may have suffered, the extent of any mitigation related to the applicant’s absence on account of his health, and the like. Indeed, a perusal of the record indicates that the respondents snatched at a bargain once the 30-day period had run its course, and relied on the applicant’s absence during that period, to the exclusion of other relevant factors, in their consideration of the applicant’s request to be reinstated. For these reasons, in my view, the decision to refuse the application for reinstatement was irrational and arbitrary, and thus stands to be reviewed and set aside.
misconduct: misrepresented in his CV
JR1546/20
Lesedi Local Municipality v Mphele and Others (JR1546/20) [2023] ZALCJHB 183 (13 June 2023)
[40] In SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration and Others[(2011) 32 ILJ 2442 (LAC).], the employee misrepresented the fact that she had a driver’s licence in her application for employment and was dismissed for dishonesty. The arbitrating commissioner at the CCMA found her dismissal substantively unfair ordering her reinstatement. The award was upheld on review by this court, but was reversed by the LAC on appeal, with Waglay DJP (as he then was) concluding that the award was unreasonable.
“[41] In Department of Home Affairs & another v Ndlovu & others[(2014) 35 ILJ 3340 (LAC)], the employee also misrepresented in his CV that he had a degree in technology marketing and was dismissed for dishonesty. The arbitrating commissioner at the bargaining council upheld the dismissal. This court set the award aside on review. The LAC however reversed this court’s decision on appeal, upholding the commissioners’ decision. Dlodlo AJA held:
The fact that the misrepresentation in the CV might very well not have induced the first respondent’s appointment to the post, most certainly does not detract from the fact of the first respondent’s initial dishonesty. The dishonesty as contained in the CV is ultimately what underpins the substantive fairness of the first respondent’s dismissal. Why did the first respondent put in his cv that which is untrue? He knew how to describe the MBA degree which was then unfinished. He could have described the bachelor of technology marketing degree similarly if he found it necessary to mention it at all in his CV.[12]
[42] The court referred to the celebrated author, John Grogan in his work Dismissal[13], where says the following about dishonesty:
“”Dishonesty”” is a generic term embracing all forms of conduct involving deception on the part of employees. In criminal law, a person cannot be convicted of dishonest conduct unless that conduct amounts to a recognized offence. However, in the employment law, a premium is placed on honesty because conduct involving moral turpitude by employees damages the trust relationship on which the contract is founded. The dishonest conduct of employees need not therefore constitute a criminal offence. “Dishonesty” can consist of any act or omission which entails deceit. This may include withholding information from the employer, or making a false statement or misrepresentation with the intention of deceiving the employer…”
[43] In Hoch v Mustek EIectronics (Pty) Ltd[(2000) 21 ILJ 365 (LC)] this court held that an employer was justified in terminating the contract of an employee who had misrepresented her qualifications prior to her appointment. This was also the case in Boss Logistics v Phopi and Others[[2010] 5 BLLR 525 (LC)] where a senior employee was found to have inflated both his qualifications and his experience in his CV.
“[44] In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others[(2017) 38 ILJ 881 (LAC) para 30], the employee failed to disclose a criminal conviction in his application for employment as a security guard. The employee was accordingly dismissed for dishonesty (some 14 years later). At the CCMA the arbitrating commissioner found the dismissal substantively unfair and awarded the employee compensation. The award was upheld on review by this court, but reversed by the LAC, who held as follows per Savage AJA:
The false misrepresentation made by the third respondent was blatantly dishonest in circumstances in which the appellant is entitled as an operational imperative to rely on honesty and full disclosure by its potential employees. It induced employment and when discovered was met with an absence of remorse on the part of the third respondent. The fact that a lengthy period had elapsed since the misrepresentation, during which time the third respondent had rendered long service without disciplinary infraction, while a relevant consideration, does not compel a different result. This is so in that the fact that dishonesty has been concealed for an extended period does not in itself negate the seriousness of the misconduct or justify its different treatment. To find differently would send the wrong message.
“
[45] In Rainbow Farms (Pty) Ltd v Dorasamy[(2014) 35 ILJ 3462 (LC)] the employee claimed to have a BTech Quality management and a BTech: Business Administration degree. Both these degrees were in fact “in progress” thus not fully achieved. The employee was advised to amend her CV to correctly reflect her first qualification. It later transpired that, the second qualification was also in progress. When the dishonesty was discovered, she was dismissed.
constructive dismissal
JR1091/22
Browns the Diamond Store (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1091/22) [2023] ZALCJHB 189 (19 June 2023)
intransigent conduct on the part of the employee and concession that the resignation was informed by the impending disciplinary enquiry is fatal to constructive dismissal claim.
“[30] In Gold One Limited v Madalani and Others,[[2020] ZALCJHB 180; (2020) 41 ILJ 2832 (LC); [2021] 2 BLLR 198 (LC) at para 46.] this Court sanctioned a well-established principle that “…intolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point”. This principle was recently concretised by the Constitutional Court, albeit in a context of reinstatement, in Booi v Amathole District Municipality and others,[(2022) 43 ILJ 91 (CC) at para 40.] where it was stated that:
‘It is accordingly no surprise that the language, context and purpose of s 193(2)(b) dictate that the bar of intolerability is a high one. The term “intolerable” implies a level of unbearability, and must surely require more than the suggestion that the relationship is difficult, fraught or even sour. This high threshold gives effect to the purpose of the reinstatement injunction in s 193(2), which is to protect substantively unfairly dismissed employees by restoring the employment contract and putting them in the position they would have been in but for the unfair dismissal. And, my approach to s 193(2)(b) is fortified by the jurisprudence of the Labour Appeal Court and the Labour Court, both of which have taken the view that the conclusion of intolerability should not easily be reached, and that the employer must provide weighty reasons, accompanied by tangible evidence, to show intolerability.’ (Emphasis added)
[31] By parity of reasoning, intolerability should not be easily reached in a case of constructive dismissal. As such, it was incumbent upon the third respondent to provide a substantial explanation that is supported by cogent evidence to prove the intolerability that led to her resignation. She sadly failed to meet this threshold. It follows that the Commissioner’s finding that the third respondent was dismissed is untenable.”
Misconduct: conduct was so unbecoming that it destroyed the trust relationship between the parties
JR1057/17
Moshiane v Commission for Conciliation, Mediation and Arbitration and Others (JR1057/17) [2023] ZALCJHB 209 (14 July 2023)
[23] Equally, the Commissioner cannot be faulted for her conclusions that the applicant’s conduct was so unbecoming that it destroyed the trust relationship between the parties. This was so since she was a supervisor with other employees reporting to her, and her conduct ought to have been exemplary. Even on her own version, the internal procedures regarding how issues of missing monies and conflict in that regard were to be dealt with, combined with searching procedures, were well known to her. In such instances, the undisputed evidence was that the matter must be reported to the immediate supervisor, and in an event of a non-resolution, to be escalated to the assistant manager and then to the store manager. There was therefore no need for her to engage in loud arguments with Abednego or to submit to his demands that she should subject herself to a search by him.
damage to property, after he was alleged to have reversed a truck into a stationary truck, causing damage in the amount of some R12 000
JR 1343/2019
Imperial Retail Logistics (Pty) Ltd v Ceda NO and Others (JR 1343/2019) [2023] ZALCJHB 244 (16 August 2023)
‘The applicant’s dismissal was substantively and procedurally fair’.
misconduct: insubordination…it was not premeditated and wilful so as to violate the trust relationship
JR2737/16
Crest Chemicals (Pty) Ltd v Pete and Others (JR2737/16) [2023] ZALCJHB 255 (8 September 2023)
“[8] Penitently, in Palluci[[2014] ZALAC 81; (2015) 36 ILJ 1511 (LAC) at paras 15 -16; see also Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] ZACC 22, (2007) 28 ILJ 2405 (CC); Head of the Department of Education v Mofokeng and others [2014] ZALAC 50, [2015] 1 BLLR 50 (LAC); Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2013] ZALAC 28, (2014) 35 ILJ 943 (LAC); Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] ZASCA 97, [2013] 11 BLLR 1074 (SCA).], the LAC also shed some light on how to deal with the issue of the appropriate sanction in relation to insubordination and insolence transgressions. It was observed that:
‘[22] As demonstrated, there is a fine line between insubordination and insolence, and insolence may very well become insubordination where there is an outright challenge to the employer’s authority. However acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. A failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employer’s lawful authority over him or her. Thus, unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.”
“[14] The conduct of Mr Pete may have been ill-considered and based on an incorrect understanding that he had a right to be consulted prior to the reallocation of the functions in question. However, it was not premeditated and wilful so as to violate the trust relationship as reasonably found by the Arbitrator. In fact, Ms Livingston conceded during her cross-examinations that Mr Pete had never behaved like this before, she trusted him and that he would not lie to her.[4] Besides, the act of insubordination did not take place in front of other employees.
“
she had to obtain Mr Pete’s identity document. Mr Pete blatantly refused and walked out even before she could finish talking to him.
misconduct: about striking workers threatening behaviour: revealed company information and/or statements about sensitive/ confidential strike information in public through WhatsApp media without authorisation”
JR2476/19
Sibanye Gold Protection Service v Commission for Conciliation, Mediation and Arbitration and Others (JR2476/19) [2023] ZALCJHB 258 (12 September 2023)
“[18] Thus, in my view, the Commissioner cannot be faulted for finding that:
‘27. I do not believe that the information posted was company information per se. He [Mr Groenewald] was only revealing information which he has received from his fellow WhatsApp members. Furthermore, I do not believe that the respondent [Sibanye] has established that the applicant was ill-motivated when he posted the information. There is no evidence to suggest that his intentions were anything but bona fide and that he was merely attempting to warn members of his neighbourhood watch of road closures and penitential danger.
28. The message itself stated that this is just information and might just ne intimidation tactic”. This does not imply or suggest that the information conveyed constituted hard evidence.’[14]”
misconduct: superior, she issued an instruction to her to clean the dust. Majola threw down the gauntlet and refused to clean. She told her superior that the person who made the mess must come and clean it up….She stated to him that she will be taking disciplinary steps against Majola. It was at this point that Majola stood up and threatened Maseko.
J1984/20
Spartan Truck Hire (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (J1984/20) [2023] ZALCJHB 264 (13 September 2023)
[17] As I conclude, there was overwhelming evidence before Makwela that Majola is guilty of the misconducts that she was dismissed for. Thus, a dismissal for reasons of misconduct is a fair one in terms of section 188 of the LRA. The misconduct that Majola was dismissed for is serious enough to render a continuation of employment intolerable. Makwela was not at large to simply replace the sanction imposed by Spartan, when the sanction is one that is fair. In terms of the disciplinary code of Spartan threatening with assault, if serious, as a first offence, it carries a sanction of summary dismissal. In light of the evidence that served before Makwela, the conclusion that the dismissal of Majola was substantively unfair is one that evinces a serious disconnect between the evidence and the outcome. Thus, the decision of Makwela does not fall within the bands of reasonableness and ought to be reviewed and set aside.
“It is replaced with an order that the dismissal of Jessy Majola is substantively fair.
“
misconduct: Mr. van Tonder allowed them to face a formal charge of misconduct or submerge their heads in a fishpond on Sibanye’s premises.
JR 651/20
Van Tonder v Sibanye Stillwater Ltd and Others (JR 651/20) [2023] ZALCJHB 265 (19 September 2023)
[16] Mr. van Tonder denied that he committed any misconduct, as the practice and tradition of submerging the employees and throwing them in the fishpond had existed within Sibanye for decades.
“[27] The commissioner accepted Sibanye’s assertion that even if the “fishpond discipline” was a tradition, it was contrary to Sibanye’s rules, processes, codes and values and had the potential to lead to an infringement of the fundamental human rights of individual employees. As such, the commissioner found that such discipline was a forbidden self-made practice.
“
“[40] In light of the above authority, a practice must meet three requirements for it to be custom. Firstly, it must be certain. Secondly, it must be uniformly observed for an extended period. Thirdly, it must be reasonable.
“
“[44] The last important consideration is whether the practice was reasonable. In a democratic South Africa, everyone has inherent dignity and the right to have their dignity respected and protected[9] is enshrined in the Constitution. Allowing, condoning and instructing junior employees to submerge their heads in the fishpond as an alternative to discipline is degrading, humiliating and therefore impacting on their dignity. In Qwelane v South African Human Rights Commission and Other[[2021] ZACC 22; 2021 (6) SA 579 (CC) at paras 63 – 66.], the Constitutional Court considered the importance of human dignity and stated as follows:
‘[63] In Freedom of Religion, this Court underscored the importance of the right to human dignity:
“There is a history and context to the right to human dignity in our country. As a result, this right occupies a special place in the architectural design of our Constitution, and for good reason. As Cameron J correctly points out, the role and stressed importance of dignity in our Constitution aim ‘to repair indignity, to renounce humiliation and degradation, and to vest full moral citizenship to those who were denied it in the past’. Unsurprisingly because not only is dignity one of the foundational values of our democratic state, it is also one of the entrenched fundamental rights”.
[64] And, in Makwanyane, this Court stressed that the protection of dignity is a cornerstone of our democratic project:
“The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern… Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.””
[65] Chaskalson, writing extra-crucially, explained that:
“[I]n a broad and general sense, respect for dignity implies respect for the autonomy of each person, and the right of everyone not to be devalued as a human being or treated in a degrading or humiliating manner.”
[66] It has been acknowledged that the concept of dignity is not easy to define in exact terms. However, in National Coalition I, this Court said that “it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society”’ [Footnotes omitted]”
“[68] In determining the appropriateness of sanction, the commissioner took into account the importance of the rule and the gravity of its contravention and found that being in a position of trust, Mr. van Tonder was obligated to protect employees from behaviour that impaired their dignity. Furthermore, he found that Sibanye could not be seen by its international partners to promote and associate itself with the conduct that humiliates and degrades its employees. As a result, the commissioner found no reason to interfere with the employer’s sanction of dismissal. The Court could not fault his finding on the evidence before him as it was reasonable.
“
misconduct: ‘moonlighting’
JR164/20
Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (JR164/20) [2023] ZALCJHB 319 (3 November 2023)
“[55] Considering the accepted / undisputed testimony as set out above, and applying the legal obligations of the applicant under her contract of employment, there can be no doubt about proper the interpretation and application of the Policy in this case. It was always beyond any contestation that what the applicant did in this case was ‘moonlighting’ as defined in the Policy. That being so, the core provision in the Policy is simple. The external employment must be declared to the office of the Vice-Chancellor up front, and permission had to be obtained. The failure to have done so constitutes breach of the Policy by the applicant, as well as a violation of her duty of good faith (fiduciary duty) towards the third respondent under her contract of employment. It is really as simple as that. It is a common sense and businesslike interpretation and application of the Policy. In Natal Joint Municipal Pension Fund v Endumeni Municipality[] it was held as follows:
‘Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document …’”
“[59] In simple terms, moonlighting as a matter of principle is unacceptable, and a breach of an employee’s fiduciary duties towards the employer. It must always be the sole prerogative of an employer to decide whether to allow this to take place, and also on what terms it may be allowed. Nothing can be assumed by the employee. That is why it has to be critical that full disclosure be made by the employee to the employer beforehand, so the employer can exercise its prerogative in an informed manner. To make disclosure to an employer after the fact effectively confronts the employer with a fait accompli, and cannot undo the breach of the duty of good faith that has already taken place. The principle was enunciated in Phillips v Fieldstone Africa (Pty) Ltd and Another[(2004) 25 ILJ 1005 (SCA) at para 36.] as follows:
‘… The fullest exposition in our law remains that of Innes CJ in Robinson v Randfontein Estates Gold Mining Co Ltd at 177-80. It is, no doubt, a tribute to its adequacy and a reflection of the importance of the principles which it sets out that it has stood unchallenged for 80 years and undergone so little refinement:
‘Where one man stands to another in a position of confidence involving a duty to protect the interests of that order, he is not allowed to make a secret profit at the other’s expense or place himself in a position where his interests conflict with his duty. The principle underlies an extensive field of legal relationship. A guardian to his ward, a solicitor to his client, an agent to his principal, afford examples of persons occupying such a position. As was pointed out in The Aberdeen Railway Company v Blaikie Bros (1 Macq 461 at 474), the doctrine is to be found in the civil law (Digest 18.1.34.7), and must of necessity form part of every civilised system of jurisprudence. It prevents an agent from properly entering into any transaction which would cause his interests and his duty to clash. If employed to buy, he cannot sell his own property; if employed to sell, he cannot buy his own property; nor can he make any profit from his agency save the agreed remuneration; all such profit belongs not to him, but to his principal. There is only one way by which such transactions can be validated, and that is by the free consent of the principal following upon a full disclosure by the agent …’”
“[70] The persistent denial of the applicant, in the face of all else, that she had not done anything wrong, has another consequence. It leaves the third respondent with no other choice but to manage its risks by ending the employment relationship with the applicant. If the applicant cannot comprehend what her fiduciary duties towards the third respondent entails, and fails to show even some modicum of appreciation that for her to take up permanent employment with another employer is wrong and may cause the proper discharge of her duties and the interests of the third respondent harm, then risk management necessitates a termination of the employment of the applicant. As said in De Beers supra:[41] ‘… Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise …’. The following dictum in National Union of Metalworkers of SA and Another v Commission for Conciliation, Mediation and Arbitration and Others[42] is an apt illustration of the point:
‘… an employee is obliged to act to protect the interests of the employer and where an employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as an employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests (which include property) of the employer. In such a case, dismissal becomes an operational imperative and way of managing risk …’”
misconduct: dishonesty
JR 1610/20
NUFBWSAW obo Mhlambi v Coca-Cola Beverages South Africa (Pty) Ltd and Others (JR 1610/20) [2023] ZALCJHB 327 (23 November 2023)
dishonesty – principles and evidence considered – conduct of employee dishonest – not necessary for employer to establish intention to be dishonest – no justification for conduct of employee – constitutes serious misconduct – dismissal justified
she explained that to get new part numbers took too long, so she then decided to use other store item part numbers to order parts needed for the maintenance shutdown, which was behind schedule and delayed.
“[35] Mhlambi suggested that she was not dishonest as she never knew the instruction allegedly given by Makuma was unlawful, and therefore she had no intention to mislead the first respondent. This suggestion is devoid of substance. Overall, Mhlambi principally tried to justify what she had done on the basis of a contrived and even false defence. That must put paid to any contention that she had no intention of being dishonest. In Nedcor Bank Ltd v Frank and Others[(2002) 23 ILJ 1243 (LAC).], the Court held that: ‘Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. …’.[21] The Court went further and referred with approval to the Canadian case of Lynch & Co v United States Fidelity & Guaranty Co [1971] 1 OR 28 (Ont SC) where it was held that: ‘… “”Dishonest”” is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning.’ The Court in SA Society of Bank Officials and Another v Standard Bank of SA and Others[22] considered the aforesaid ratio in Nedcor Bank and came to the following conclusion:
‘Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal.’ “
[36] The existence of deception of the kind that establishes dishonesty as misconduct can be established by considering firstly whether the employee provided false information to the employer, and secondly whether the conduct of the employee, considered as a whole, deceived his or her employer as to the true state of affairs.[23] It not necessary to specifically prove intention. For example, in SA Society of Bank Officials supra, the charge brought by the employer against the employee was that she recorded information on the teller’s cash balance specification, which she knew was false, in that she recorded takeover figures which misrepresented the true nature of the position regarding the cash in her safe and thus falsified the bank’s records. The comparisons to the case in casu are apparent. According to the Court, the question was whether the employee’s actions were ‘intrinsically dishonest’,[24] which the Court accepted to be the case.
[38] In the end, it has been regularly held that dishonesty where it comes to falsification of documents by recording false information thereon or therein, is the kind of gross dishonesty that constitutes misconduct of a sufficiently serious magnitude so as to justify dismissal.[27] Mhlambi has thus earned her dismissal for what she did.
misconduct, fairness of a dismissal
JA 47/22
Brauns and Others v Wilkes N.O and Others (JA 47/22) [2024] ZALAC 1; [2024] 4 BLLR 365 (LAC); (2024) 45 ILJ 1183 (LAC) (18 January 2024)
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others [2016] ZALAC 55; (2017) 38 ILJ 881 (LAC) at paras 25 – 26.
“‘[25] In determining the fairness of a dismissal, each case is to be judged on its own merits. Item 3(4) of the Code of Good Practice recognises that dismissal for a first offence is reserved for cases in which the misconduct is serious and of such gravity that it makes continued employment intolerable, with instances of such misconduct stated to include gross dishonesty. When deciding whether dismissal is appropriate, the Code requires consideration, in addition to the gravity of the misconduct, of personal circumstances, including length of service and the employee’s previous disciplinary record, the nature of the job and the circumstances of the infringement itself. Other relevant considerations include the presence or absence of dishonesty and/or loss and whether remorse is shown.
[26] The employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.’ [footnotes omitted]”
misconduct: tested positive for cannabis (and refer to intoxication due to alcohol, zero tolerance)
JA86/22
Enever v Barloworld Equipment South Africa, A Division of Barloworld South Africa (Pty) Ltd (JA86/22) [2024] ZALAC 12; [2024] 6 BLLR 562 (LAC); (2024) 45 ILJ 1554 (LAC) (23 April 2024)
[3] As will be evident from the background that follows, the main issue, as I see it, is the effect of the Constitutional Court’s decision in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton[1](Prince), on workplace discipline, following a positive cannabis test. In that decision, the criminal prohibition against adults cultivating, possessing and using cannabis in the privacy of their homes was declared unconstitutional.
[12] The Appellant did not test negative during the period at home and on 30 April 2020, the outcome of her enquiry was delivered where she was summarily dismissed. While the Respondent’s initiator had requested the sanction to be a final written warning, the chairperson found that this was futile because the Appellant made it clear that she would not stop using cannabis as it was her right to do so. It was accepted by the Respondent that, at the time of her testing, she was not impaired in the performance of any of her duties or suspected of being intoxicated, that she worked in an office without operating dangerous machinery nor that she was required to drive for the Respondent.
[34] While I agree that Prince did not involve labour matters, the significance of the decision implicates the nature of the right to privacy, which all employees have. An employer cannot disregard an employee’s privacy when implementing or acting in terms of its policies. In Prince, the Constitutional Court pronounced upon this right.[27] Clearly, an objective consideration of the Respondent’s policy is that any employee who works for it cannot smoke cannabis at all. Employers are not completely barred from asking their employees to completely refrain from certain conduct. Policies against drug and alcohol use are standard and are aimed at complying with section 8(1) of the Occupational Health and Safety Act.[28] It is on this basis that the Respondent justifies its violation of the Appellant’s right to limiting what she does in her own private time outside the workplace.
“[35] I do not find this a justifiable reason for the infringement of the Appellant’s right to privacy. In Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others,[29] the Constitutional Court invalidated section 2 of the now repealed Indecent or Obscene Photographic Matter Act.[30] That section had prohibited the private possession by any person, including adults, of “indecent or obscene photographic matter”. Langa J said:
‘With regard to the first question [the constitutionality of the provision creating the offence] and having regard to the definition which is couched in very wide terms, I am satisfied that the prohibition as framed is unconstitutional. I am in respectful agreement with the reasons so succinctly expressed by Didcott J, more particularly that a ban on possession of the material hit by section 2(1) of the Act infringes the right to personal privacy guaranteed by section 13 of the Constitution. The terms of the provision, read with the definition, are unquestionably overbroad and have the effect of sanctioning the unwarranted and unjustifiable invasion of the right to personal privacy regardless of the nature of the material possessed.’[31] (Footnote omitted and emphasis added.)”
“[36] The principle that overbroad, unwarranted and unjustifiable invasions of the right to privacy being unconstitutional is applicable to this case. In Bernstein and Others v Bester NO and Others,[32] the Constitutional Court quoted the Council of Europe on the scope of the right to privacy consisting of–
‘…essentially in the right to live one’s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection from disclosure of information given or received by the individual confidentially.’[1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751.]”
“[37] Noting the importance of the right to privacy and its association with the right to dignity, in AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others,[[2021] ZACC 3; 2021 (4) BCLR 349 (CC); 2021 (3) SA 246 (CC).] Madlanga J for the majority of the Constitutional Court said:
‘To this, one may add the fact that the invasion of an individual’s privacy infringes the individual’s cognate right to dignity, a right so important that it permeates virtually all other fundamental rights. About its importance, Ackermann J said “the right to dignity is a cornerstone of our Constitution”. And in Hugo this Court quoted the words of L’Heureux-Dube J with approval. They are that “inherent human dignity is at the heart of individual rights in a free and democratic society.’[35] (Footnotes omitted.)”
[39] There are only a few judgments from this Court and the Labour Court regarding cannabis intoxication, but I am of the view that the principles from judgments dealing with zero-tolerance policies for alcohol intoxication are able to offer guidance and are similarly applicable to cannabis.
“[42] Underpinning these decisions is the principle that intoxication is a matter of degree, which this Court explained in Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others[[2015] ZALAC 23; [2015] 9 BLLR 887 (LAC); (2015) 36 ILJ 2273 (LAC).] as follows:
‘[17] A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach.
[18] But the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners. A zero tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin.’[42] (Citation omitted and emphasis added.)”
“[48] In cases where alcohol intoxication has been suspected, a breathalyser is not always conclusive on its own to justify dismissal.[49] Instead, it can be coupled with other evidence such as the employee having slurred speech; impaired coordination; loudness; and all the other known symptoms of alcohol intoxication.[50] A similar jurisprudence on the known symptoms of cannabis and their effect compared to the duties associated with the nature of the job should be allowed to develop. All this will depend – in addition to the test results (where available) – on the facts of each case and eyewitness accounts. This is not to say that test results on their own are always insufficient, but that the nature of the job determines the amount of evidence required to justify dismissal.[51]
“
[52] I conclude that the Respondent’s policy is overbroad and infringes the Appellant’s right to privacy. I find that her treatment as someone who was “intoxicated” when in fact she was not, is unfair discrimination because it singles out cannabis users compared to alcohol users, for what they do at home, even in situations where their conduct carries no risk for the employer.
misconduct: sick leave fraud
JA32/2022
Sibanye Rustenburg Platinum Mine v Association of Mineworkers and Construction Union obo Sono and Others (JA32/2022) [2024] ZALAC 23; (2024) 45 ILJ 1623 (LAC) (2 May 2024)
13] This was so in that the facts showed that the employees had submitted fraudulent sick notes and received pay for days they did not work as a result. Their sick notes were purportedly issued by Platinum Health but stamped at the RPM Hospital. The investigation revealed that the employees did not visit Platinum Health as recorded in the medical certificates. The certificates were signed by the same unknown person without her/his initials or surname and none of them had a serial number. The employees submitted the certificates with one motive, namely to deceive the appellant in circumstances in which the appellant has a zero-tolerance approach in as far as dishonesty and fraud. The misconduct committed by the employees was of a serious nature and was grossly dishonest. Such conduct patently undermined the trust relationship between the parties.
misconduct: irregular medical certificates: suspicion that Dr Frempong was selling medical certificates.
JA90/22
Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA90/22) [2024] ZALAC 29; [2024] 8 BLLR 881 (LAC) (13 June 2024)
[29] Her charges emanated from Mr Malaka and Ms Nkambule’s dissatisfaction with how a properly qualified Dr Frempong chose to run his medical practice. These included their impressions about the clutter in his consultation room, the general untidiness of the surgery, the length of his nails and what they allegedly heard, which seemed to them to be people buying medical certificates. The hearsay evidence about other people allegedly buying medical certificates had nothing to do with Ms Maseko. It had nothing to do with her even if it was true that indeed those other people were sold medical certificates by Dr Frempong or his staff when they were not even sick.
[30] Surely it cannot be that a doctor who is otherwise a qualified doctor who dabbles into some or other illegal activity of selling medical certificates is somehow assumed to be disqualified from examining people and book them off sick untainted by the issues of illegally selling medical certificates. The idea that an employee who happens to go to a doctor who is not trusted by an employer must be subjected to a disciplinary process for using that doctor is troubling. At the very least, the employer should investigate their suspicions about the contraventions of standard operating procedures by that doctor and if the suspicions are well founded, the employees should be warned about using that particular doctor once some valid grounds have been established. That investigation would necessarily include state entities such as the HPCSA and other similar regulatory bodies.
[32]…The real issue was whether or not Ms Maseko saw Dr Frempong on that day and whether he booked her off sick for four days. Once these questions were answered in the affirmative by Dr Frempong, I fail to see what else was required of Ms Maseko.
misconduct: strike: parity principle
J 2086/20; JR 2111/20
National Union of Public Service and Allied Workers (“NUPSAW”) obo Lutendo and Others v Commission for Conciliation, Mediation and Arbitration and Others (J 2086/20; JR 2111/20) [2024] ZALCJHB 1; [2024] 3 BLLR 333 (LC); (2024) 45 ILJ 579 (LC) (5 January 2024)
64. With respect to the concept of “common purpose”, the recent Constitutional Court decision in NUMSA obo Dhludhlu and 147 others v Marley Pipe Systems (SA)(Pty) Limited[2023 (1) SA 338 (CC)] is authoritative. In factual summary, this case dealt with the dismissal of 41 employees, on the basis of common purpose for the assault on the Head of Human Resources, during an unprotected strike. NUMSA claimed their members had been unfairly dismissed as they had not made common purpose with the actual perpetrators of the physical assault, but the Labour Court and Labour Appeal Court disagreed. NUMSA appealed to the Constitutional Court which upheld the appeal, and found the members not guilty of the assault. The court ordered the matter to be remitted back to the Labour Court to consider a sanction for participation in an unprotected strike.
“65. The reasoning of the Constitutional Court is relevant to the matter before this court. The principles which emerged[30] are the following:
65.1. Mere presence and watching does not suffice (merely “”being there”” cannot constitute association);
65.2. There must be evidence, direct or circumstantial that employees in some form or another associated themselves with the violence before it commenced or even after it ended;
65.3. The employee must perform some act of association with the unlawful conduct;
65.4. An intention in relation to the violence is required;
65.5. Singing during an assault is not enough to demonstrate an act of association.”
“66. The Constitutional Court concluded with,
“”Sympathetic though I am of the difficulties facing employers, individual complicity in the commission of acts of violence must be established. This is what the principles of common purpose have always required. If it were to be otherwise, the law would be a cruel instrument that attaches guilt and imposes sanction on the innocent. Association in complicity for purposes of common purpose must include having the “”necessary intention”” in relation to the complicity.[31]
“
70. I am though persuaded that the Commissioner misconceived the principles of common purpose when finding that the unidentified employees who never left the bus acted in concert with those who alighted and attacked the Woodmead and Sunninghill Dis Chem stores say so because there was no evidence that those who remained behind had the intention to commit violence, and they showed no outward manifestation of support except to sing struggle songs. Singing struggle songs is part and parcel of the culture of resistance, and is a feature in labour disputes, political rallies and service delivery protests.
71. I concur with Savage AJA in South African Commercial Catering and Allied Workers Union and others v Makgopela and others[32] when she said “our law does not allow a determination of guilt simply by association.”[[2023] 6 BLLR 509 (LAC)]
[72]…The arbitration award, with the finding of a fair dismissal for all the employees (except two) may be sustained on the totality of the evidence before the Commissioner, despite the error of law regarding the application of the doctrine of common purpose.
misconduct: dishonesty
JR1587/22
Solidarity and Another v South Bakels (Pty) Ltd and Others (JR1587/22) [2024] ZALCJHB 91 (1 March 2024)
Gross dishonesty – Commissioner found dismissal substantively fair –Commissioner failed to apply his mind rationally and justifiably to facts and evidence – Had not taken all evidence presented into account – Erred in finding applicant had not followed company practices – No formal company policy or practice in place for allocation of parking bays – Commissioner’s finding is disconnected from evidence presented and is not reasonable – Reviewed and set aside.
[48] In the case of DRS Dietrich, Voigt & MIA v Bennet CM N.O and Others[[2019] ZALAC 2; (2019) 40 ILJ 1506 (LAC).], the LAC distinguished between conduct resulting from an error or negligence and conduct which is intentional. Intentional conduct would amount to dishonesty.
[50] In Nedcor Bank Ltd v Frank and Others[[2002] ZALAC 11; (2002) 23 ILJ 1243 (LAC) at para 15.], the LAC held that dishonesty entails “a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently”. The court also held that the term implies intention on the part of the employee; just as one cannot steal negligently, negligence, however gross, cannot give rise to a charge of dishonesty.
misconduct: person has acted negligently
JR1074/20
DSV Healthcare (Pty) Ltd v Maduna N.O and Others (JR1074/20) [2024] ZALCJHB 109 (6 March 2024)
“[5] Any Commissioner called on to arbitrate and determine disputes involving acts of negligence or gross negligence, should always in assessing the validity of the charge, attempt to place him/herself in the position of that somewhat gormless figure, the diligens paterfamilias, and then attempt to understand what steps, if any, he or she would take so as to guard against his or her conduct causing injury to another and causing it patrimonial loss were he/she so placed and having done so, then to measure those notional steps with the steps actually taken by the defendant. For negligence the question of whether or not a particular person has acted negligently is always a very fact specific question. Nowhere is this test better stated and set out than in the famous dictum of Holmes JA in Kruger v Coetzee[1] where the Court held that:
‘For the purposes of liability culpa arises if-
(a) a diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some 50 years. Requirement (a) (ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases. (own emphasis)
[6] It is a test that the Commissioner in this matter manifestly failed to apply.”
“[11] On 13 December 2018, three parcels were received by DSV Healthcare at the workplace where Chauke operated. One went missing immediately. It was a Kryoton (that is a large parcel) valued at R278 000.00 and looks like a freezer and is easy to locate. The fact that this parcel went missing came to Chauke’s attention who on 14 December 2018 sent an email that the order was not received in full. The validation period would have expired on 20 December 2018.
[12] Yet Chauke, having reported the matter on 14th December, thereafter did nothing more about the matter, until he returned from leave in January the next year. According to the uncontradicted evidence of Chauke’s direct superior Rayno Sass, Chauke only escalated this matter to him when he came back from leave in January 2019.”
[21] She erred in failing to determine that a reasonable employee in Chauke’s position was required to do much more than he did. Such an employee who on 14 December 2018 discovered that this particular Kryoton worth R278 000 had gone missing and who at all times was aware that its validation period was 6 days and that thereafter this product would expire, would not have contented himself with a single email written on 14 December. Such an employee would have followed up with further emails and actions well knowing that by neglecting to do anything further, there was a reasonable possibility that this conduct would cause his employer DSV Healthcare to suffer loss. Unlike Chauke, the reasonable employee would have taken reasonable steps to guard against such an occurrence. Such an employee would, for example, have escalated the matter to his superior within the validation period. It is common cause that Chauke never took these steps. The arbitration record indeed contains a very interesting admission made by Chauke under cross-examination being, “the only thing I did not do was escalate”. It was precisely however, this type of non-action on his part that served to render him guilty of the misconduct for which he was dismissed.
misconduct: Despite this reasonable justification for refusing him leave, he left anyway for 13 days.
JR 1725/2021
Zibula v Chrom-Tech Holdings (Pty) Ltd (JR 1725/2021) [2024] ZALCJHB 108 (13 March 2024)
“12. In the hearing before me, the legal representative argued that the sanction of dismissal was too harsh noting the mitigatory elements summarised above. He pointed me to the case of Pick n Pay Retailers v SACCAWU obo Mzazi[Case no. ca 19 / 2015] in which the Labour Appeal Court found that the dismissal of an employee for unauthorised absence was unfair and ordered reinstatement.
13. I have considered that case, and as compelling as it may appear to be, find the facts in the case before me distinguishable in that the employee was a supervisor, and knew that there had to be a replacement to replace him whilst he was on leave. That was a standard practice, noting his seniority. He was informed that the two potential replacements had become infected with Covid and that his leave had not been approved.[6] Despite this reasonable justification for refusing him leave, he left anyway for 13 days.”
9. Finally the Applicant argues that he was entitled to annual leave as per the Basic Conditions of Employment Act, 1997 (the “BCEA”).[4] Let me simply put that point to bed by confirming that according to section 20(10) of the BCEA, annual leave may be taken by agreement between the employee and the employer, and if not agreement at a time convenient to the employer. The time the employee wanted to embark on leave was not convenient to the employer.
15. The Applicant breached a workplace rule – he went on leave without permission. He did so knowingly. The rule is a reasonable one, and in any event accords with the BCEA. In aggravation is the fact that no replacement could be arranged because two of his colleagues had covid and were in isolation.
misconduct: employee clearly obstructing proper search of his bag – conduct of employee highly unusual – arbitrator drawing proper inference from such conduct in finding that employee committed misconduct
JR2132/21
Association of Mineworkers and Construction Workers Union v Commission for Conciliation Mediation and Arbitration and Others (JR2132/21) [2024] ZALCJHB 139 (18 March 2024)
“[56]…So, and in short, what Eyarabang did in this case was nothing short of dishonest. The fact of the matter is that as a general proposition, dishonesty is the kind of misconduct that justifies the sanction of dismissal as an appropriate and fair sanction.[31] In SA Society of Bank Officials and Another v Standard Bank of SA and Others[32] it was held as follows:
‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception. This court in Nedcor Bank Ltd v Frank & others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal. …’
“
“[57]…What was actually required of Eyarabang, and in which he failed, is neatly articulated in ABSA Bank Ltd v Naidu[33] as follows:
…. it followed that she owed a fiduciary responsibility vis-à-vis the appellant towards ensuring that, at all times, she acted and performed her duties in a manner that was in the best interests of both the appellant and its clients. …’ “
“As was pertinently said in Impala Platinum Ltd v Jansen and Others[35]:
‘Since Edcon, this court has repeatedly stated that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of an employer to retain a delinquent employee in its employ.’”
“[62] In the end, it was simply too risky for the third respondent to continue with employing Eyarabang, considering all that transpired in this case. It was appropriate, in the context of risk management, to bring the employment relationship to an end. As said in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others[39]:
‘A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. …’”
misconduct: no intention to deceive.
JR1824/19
South African Express Airways Soc Ltd v Mafujane and Others (JR1824/19) [2024] ZALCJHB 160 (3 April 2024)
2] The question asked under section 6 of the declaration form was whether the employee had any “remunerative commitment” outside the company. Instead of responding by ticking or crossing “yes” or “no”, the employee left this question unanswered.
[24] The employee testified that he had no intention to deceive. The onus was on the company to show that the employee’s failure to declare under section 6 was intended to withhold information about his external work. This, the company could not possibly have proved because it has been aware of the employee’s external work. The commissioner considered the definition of dishonesty and understood that the company bore the onus of proving the charge. He found that the company failed to prove the charge. This decision is reasonable and there is no basis to interfere with it.
misconduct: unauthorised possession of company property
JR1288/21
Exxaro Coal Mpumalanga (Pty) Ltd (Malta Coal) v Commission for Conciliation, Mediation and Arbitration and Others (JR1288/21) [2024] ZALCJHB 186 (29 April 2024)
[26] Even if the items did not belong to Maimela and it is accepted that they belonged to the company, as it appears to have been assumed in this case by the commissioner, there was no evidence to establish that the employee removed the items with full knowledge that they belonged to the company and not Maimela, and significantly, that Maimela was not authorised to remove them.
21] To prove the charge of unauthorised possession of company property, the company had to establish that the employee was (1) in possession of a property (2) that belonged to the company and (3) that he was not permitted or allowed to be in such possession or that he did not possess the necessary authority or permit.
24] The evidence led at arbitration proceedings established that the employee, on request by Maimela, loaded the items and delivered them to the car park, as per Maimela’s request. Maimela, according to the company’s evidence, informed Mbedzi and his line manager that the items belonged to him. There is no evidence to suggest that the items did not belong to Maimela and that the employee was aware of this fact. Both Mr Maeso for the company and Mr Groenewald for the employee agreed that there was no evidence before the commissioner to prove ownership of the items.
misconduct: sleeping on duty
JR2424/21
Sibanye Gold Protection Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (JR2424/21) [2024] ZALCJHB 190 (7 May 2024)
[25] Even if I were to accept that the Commissioner has committed an irregularity by not affording the parties an opportunity to question his photos, observations and findings during the second inspections in loco, which I do with a pinch of salt, Mathebula’s cross-examination as far as the first inspection in loco is tantamount to a fatal bullet fired towards the applicant’s case. This ground for review stands to fail as it is not sustainable on the evidence presented at the arbitration hearing. The point is that, a person could not be seen from the inside out of this vehicle and this then brings Mathebula and Botes’ evidence into serious question whether they saw Makgoe sleeping, especially when both inspections in loco were conducted during the day versus their encounter with Makgoe which took place at night.
misconduct: “theft”
JR1052/20
Ndlovu v Safety and Security Sectoral Bargaining Council (JR1052/20) [2024] ZALCJHB 207 (13 May 2024)
“
[24] Theft as a disciplinary transgression is no doubt one of the most serious forms of misconduct. It is a manifestation of dishonesty. The conundrum which a disciplinary charge of “theft” often presents, is what the appropriate standard of proof is, and what the elements are that need to be proven in order to fairly dismiss an employee charged with theft.
[25] The learned author Grogan[10] opines that:
‘Theft therefore requires proof of intention to deprive the owner of use and possession and knowledge that the act was unlawful. It must also be proved that the employee committed an act by which the owner is actually deprived of possession. The necessary mental element is present if the employee was aware that the goods did not belong to him or her and the employee intended to remove the property permanently from the owner, knowing that he or she was not entitled to do so……
The physical element of theft is proved if the employee’s act gives rise to the conclusion that the employee intended to deprive the owner of possession of the goods. Both elements need to be proved on a balance of probabilities.’
[26] I agree with his approach. As such, it is not necessary for an employer to prove theft by the standards one would expect of a criminal Court, beyond a reasonable doubt. To expect such a burden of proof from an employer would be unreasonable.
[27] What is required, is, as the author suggests, to establish that the employee was aware that the goods did not belong to him, and that he intended to deprive his employer of possession of those goods, on a balance of probabilities.”
misconduct: gross negligence
JR477/22
Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR477/22) [2024] ZALCJHB 247 (3 June 2024)
“gross negligence – principles considered – conduct of employee constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – arbitrator having no regard to the essential requirement of safety on mines – finding of substantive unfairness reviewable
gross negligence – principles considered – conduct of employee constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – arbitrator having no regard to the essential requirement of safety on mines – finding of substantive unfairness reviewable
gross negligence – principles considered – conduct of employee constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – arbitrator having no regard to the essential requirement of safety on mines – finding of substantive unfairness reviewable
gross negligence – principles considered – conduct of employee constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – arbitrator having no regard to the essential requirement of safety on mines – finding of substantive unfairness reviewable
gross negligence – principles considered – conduct of employee constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – arbitrator having no regard to the essential requirement of safety on mines – finding of substantive unfairness reviewable”
safety hazard is identified, all working crew must stop
45] In the circumstances, the misconduct of Makhetha is indeed very serious. It deserved the label of ‘gross neglect of duty’ attached to it in the charge. Gross negligence inter alia means a total failure to take care,[Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas and Another 2003 (2) SA 473 (SCA) at para 7.] which is what Makhetha perpetrated in this instance. There had been a flagrant violation of safety rules in an industry where strict compliance with such rules is an imperative. This violation was found to be the main cause of the accident on 2 October 2020 which had fatal consequences. Makhetha thus earned her dismissal, and any finding to the contrary simply cannot be a reasonable outcome.
misconduct: inconsistency
JR477/22
Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR477/22) [2024] ZALCJHB 247 (3 June 2024)
“[49] But the above being said, it is my view that any finding of inconsistency in this case is entirely unsustainable, both in fact and in law. I will start with a short discussion of the applicable legal principles. In National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section)[24]:
‘The idea of inconsistency in employee discipline derives from the notion that it is unfair that like and like are not treated alike. The core of this ‘factor’ in the application of employee discipline (it would be a misconception to call it a principle) is the rejection of capricious or arbitrary conduct by an employer.
It has application in two respects. Mainly, it is a recognition of the unfairness of the condemnation of one person for genuine misconduct when another indistinguishable case of misconduct by another person is condoned. The second application is the recognition of the unfairness that results when disparate sanctions are meted out for indistinguishable misconduct to different persons.’”
“
[50] In Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[25] the Court had the following to say:
‘This court sounded a warning on approaching the question of inconsistency in the application of discipline willy-nilly without any measure of caution. Inconsistency is a factor to be taken into account in the determination of the fairness of the dismissal but by no means decisive of the outcome on the determination of reasonableness and fairness of the decision to dismiss. …’”
51] The Code of Good Practice in the LRA also provides for consistency as a consideration in deciding the issue of the fairness of the sanction of dismissal.[26] This consideration applies where the employee was charged with misconduct, and was properly found guilty of the same, but in deciding whether dismissal for this would be appropriate the issue would be that dismissing the employee for such misconduct would be inconsistent with the sanction imposed by the employer for similar and related misconduct, in the past, in respect of other employees.[27] Where instances of inconsistency are raised as a defence to dismissal as an appropriate sanction, this would form part of the value judgment that must be exercised in deciding whether dismissal is fair.[28]
“[52] The well-known judgment of SA Commercial Catering and Allied Workers Union and Others v Irvin and Johnson Ltd,[29] aptly determined the principles applicable to deciding inconsistency, as being: (1) Employees must be measured against the same standards (like for like comparison); (2) Did the chairperson of the disciplinary enquiry conscientiously and honestly determine the misconduct; (3) The decision by the employer not to dismiss other employees involved in the same misconduct must not be capricious, or induced by improper motives or by a discriminating management policy (in other words this conduct must be bona fide); and (4) A value judgment must always be exercised[SRV Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 135 (LC) at para 23.].
“
“[53] In general, inconsistency as a consideration is intended to protect employees against arbitrary conduct by the employer. Objective difference in circumstances is thus a critical consideration. In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[31] it was said:
‘… An inconsistency challenge will fail where the employer is able to differentiate between employees who have committed similar transgressions on the basis of inter alia differences in personal circumstances, the severity of the misconduct or on the basis of other material factors …’”
“[54] Finally, inconsistency must be properly raised and dealt with in the arbitration proceedings, in such a manner so as to identify the other employee(s) who may have been treated differently, as well as the basis for the contention that the dismissed employee should not have been treated differently. As described by the Court in Bidserv supra[32]:
‘… A generalised allegation of inconsistency is not sufficient. A concrete allegation identifying who the persons are who were treated differently and the basis upon which they ought not to have been treated differently or that no distinction should have been made must be set out clearly.’”
“The employee party has the evidentiary burden to establish this. In Comed Health CC v National Bargaining Council for the Chemical Industry and Others[33] the Court said:
‘It is trite that the employee who seeks to rely on the parity principle as an aspect of challenging the fairness of his or her dismissal has the duty to put sufficient information before the employer to afford it (the employer) the opportunity to respond effectively to the allegation that it applied discipline in an inconsistent manner. …’”
55] Applying the above principles to the facts in casu, the point of departure of the second respondent is all wrong. He finds that Zulu was given a different sanction. That implies that Zulu is guilty of the misconduct. But that is simply not correct. Zulu was acquitted of the misconduct charge, meaning he is not guilty. That is a finding of fact by the chairperson of that disciplinary hearing, and as such, inconsistency cannot come into play. Simply put, if one chairperson, after considering the facts and charges, believes an employee is not guilty, but another chairperson also considering the same facts and charges for another employee believes that the latter is employee is guilty, that is not inconsistency. At best it may be a wrong finding.
by operation of law: no dismissal
JR749/22
South African Municipal Workers Union obo Mgcineni v South African Local Government Bargaining Council and Others (JR749/22) [2024] ZALCJHB 244 (20 June 2024)
24] Section 186(1)(a) of the LRA defines a “dismissal” as a termination, by the employer, of an employment contract, with or without notice. In National Union of Leather Workers v Barnard NO & another[16] the LAC considered that a dismissal, for the purposes of section 186(1)(a), requires that the employer engage in an act which brings the contract of employment to an end in a manner recognized as valid by the law. In that matter, the company took a resolution to wind up and that constituted an act which brought about the termination of the employment contract. If however the company was wound up by way of compulsory liquidation, through an act of a creditor, there would be no dismissal. In Nogcantsi v Mnquma Local Municipality & others[17] the LAC recorded that section 186(1)(a) required an act by the employer but in performing the act there must have been some form of intention to cause the dismissal.
[25] In this matter, as the arbitrator correctly pointed out, there was no act by the employer, the Municipality. Instead, it was the conduct of Mgcineni which led directly to the termination of his employment contract, by operation of law. Unfortunately, Mgcineni failed to seek and obtain proper advice before he decided he wished to become a councillor. Then, once again, he failed to seek and obtain proper advice before deciding to withdraw as a councillor. In both instances, Mgcineni is the author of his own misfortune. The outcome may be unfortunate; but this Court, like the employer, is bound by the law.
derivative misconduct
DA 9/23
AJ Charnaud and Company v SACTWU obo Members and Others (DA 9/23) [2024] ZALAC 33; [2024] 10 BLLR 1016 (LAC); (2024) 45 ILJ 2257 (LAC) (17 July 2024)
National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others [2019] ZACC 25,
27] What the evidence suggests is that despite the arbitrator’s reference to ‘derivative misconduct’, the present case is not one that concerns derivative misconduct, at least not in the sense that term was employed in National Union of Metalworkers of SA on behalf of Nganezi and others v Dunlop Mixing and Technical Services (Pty) Ltd and others (Casual Workers Advice Office as amicus curiae),[8] where employees were dismissed not for participating in the primary misconduct but for failing to disclose to the employer information regarding that misconduct.[9] The charge brought against the employees in the present instance is one of direct participation in misconduct. The arbitrator’s award does not apply the principle of common purpose, at least not in the sense that the term and its application were discussed by the Constitutional Court in Marley Pipe. Put another way, the appellant does not rely on the employees’ presence at the scene and any failure to intervene or disassociate themselves with an act of misconduct to justify the employees’ dismissal. The appellant relies on the direct observation by its witnesses of participation in the act of holding the Charnauds captive in their vehicle and preventing other members of management and monthly-paid employees from leaving the premises. The references to Marley Pipe and Dunlop Mixing in the Labour Court’s judgment are thus red herrings.
[29] In short, the arbitrator’s reference to the employees being “either primarily or derivatively guilty” is unfortunate – the evidence before him established, on a balance of probabilities, that the employees had directly participated in the misconduct for which they were dismissed. The arbitrator’s reference to derivative misconduct is a misnomer, but the conclusion to which he ultimately came is not untenable, having regard to the evidence that served before him. The arbitrator’s factual findings must therefore be upheld.
“[30]…A resort to violent protest in the circumstances was an act of serious misconduct for which the sanction of dismissal is undoubtedly an appropriate penalty. The arbitrator’s conclusion to that effect clearly falls within a band of decisions to which a reasonable decision-maker could come.
“
gross insubordination: were not on duty, does not render the several instructions given by management to return to work “unlawful and unenforceable”
JR761/22
Dladla v Motor Industries Bargaining Council (JR761/22) [2024] ZALCJHB 260 (4 July 2024)
[37] The above matter established the principle that acts of insolence and insubordination do not justify dismissal unless they are serious, persistent and deliberate. Therefore, the sanction of dismissal is reserved for instances of gross insubordination, or the wilful flouting of the employer’s instructions.[6] Further to this, the Code of Good Practice on Dismissals lists gross insubordination as a permissible ground for dismissal. I am of the view that the Applicant’s actions were serious due to the fact that they had alternatively could have interrupted the on the job training they were to undertake and thus a serious assault on the authority of the Third Respondent and the operation of its business.
“33] In Exxaro Coal Mpumalanga Ltd v CCMA & Others,[Unreported case JR269/11.] the court held as follows:
‘…Should it be shown that the instruction was unlawful, it would be the end of the inquiry. If it is found that the instruction was lawful, the expectation is that the employee to whom such instruction was issued should have complied. It will have little, if any, to do with whether the instruction related to the employee’s job description because it will never be a justification for an employee to refuse lawful instructions merely because the instructions are not his or her direct functions.’”
[36] The Labour Court in Independent Risk Distributors SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[[2022] ZALCJHB 282.] stated that in order to be found guilty of insubordination, an unrepentant intransigence against a good instruction issued by a superior must be present. Moreover, for such obstinacy to be dismissible, it must be gross (serious, persistent and deliberate). It is my view that the insubordination of the Applicants met the aforementioned criteria as they disobeyed instructions from their superiors from 07h00 on the 12th of March 2018 up and until at least 12h00.
[38] In the case of TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others,[[2019] 2 BLLR 142 (LAC); [2018] ZALAC 36.] the same instructions were repeatedly explained to the employee, and he was afforded ample time to comply, yet he wilfully defied the instruction. This is analogous to the conduct of the Applicants in this matter who were given the same instruction multiple times as well as in the form of two written Ultimata, however, same were not heeded by the Applicants who essentially disregarded such Ultimata.
[39] In Sylvania Metals (Pty) Ltd v Mello N.O. and Others,[[2016] ZALAC 52 at para 17.] the LAC held that insubordination in the workplace includes a wilful and serious refusal by an employee to adhere to lawful and reasonable instructions of the employer, as well as conduct which poses a deliberate and serious challenge to the employer’s authority. I am of the view that this description fits the misconduct of the Applicants.
[45] Lastly, the Applicants rely on the fact that an unlawful and unenforceable instruction can never be reasonable.[14] In my view, the mere fact that the Applicants were not on duty, does not render the several instructions given by management to return to work “unlawful and unenforceable”. It also did not entitle the Applicants to refuse to engage with Van Rensburg and Ntladi. It is irrelevant whether the Applicants were on shift or not, as it was made clear to them that the Third Respondent was unaware of any meeting which had been arranged with Futshane and was of the view that they could not remain in the canteen. This notwithstanding the Applicant’s obstinately remained in the canteen and ignored their supervisor.
misconduct: uttered the following words “you should die”
JR50/22
Tempest Car Hire v Lebyane and Others (JR50/22) [2024] ZALCJHB 283 (1 August 2024)
57] The real issue was what she said to Ms Moodley “she should die”. This is not the type of words that any employee should utter at the workplace. These types of words are offensive and have no place in the workplace. The applicant was therefore within its right to take disciplinary action against the employee.
60] The applicant’s disciplinary code and procedure recommend a sanction of dismissal for offensive behaviour.
misconduct: threatened an employee reporting for work by saying you know the game they playing with you; you will play the same game against them
JR736/22
AMCU obo Mtya v Commission for Conciliation Mediation and Arbitration and Others (JR736/22) [2024] ZALCJHB 301 (12 August 2024)
“I know the game that you are playing; I will play the same game against you”
[43] It is important to indicate that after a cursory glance at the award of the Second Respondent, I could not find anything that justified the dismissal of the Applicant, most importantly considering the meaning of the words the Applicant is alleged to have uttered, which the Second Respondent found to be constituting a threat.
misconduct: Positive alcohol test
JR1721/2021
National Union of Metalworkers of South Africa obo Thabo v Boss Scaffolding and Access Solutions and Others (JR1721/2021) [2024] ZALCJHB 359 (12 August 2024)
Committed disciplinary offence and was supervisor – Employee not allowed to enter workplace after failing test – Whether failure of breathalyser test sufficient for dismissal under rule and offences related to being under influence of alcohol – Commissioner misconceived nature of enquiry and found dismissal fair – Showed remorse and apologised – Reinstatement ordered.
[11]…the dismissal was harsh in that at the disciplinary enquiry, the Employee had pleaded guilty, shown remorse, apologised and requested a second opportunity in order to correct his behaviour.
[36] Whether a dismissal is justifiable simply on the basis of an employee having failed a breathalyser test is a topic that has been before the Court on several occasions. In determining this issue, the starting point would be to reiterate the principle set out in Shoprite Checkers (Pty) Limited v Tokiso Dispute Settlement and Others[15] (Shoprite), which is that in such instances, even if an employer had adopted a zero-tolerance policy towards alcohol or drug related offences, there is an obligation on a commissioner as the initial and primary judge of whether a decision is fair, to be vigilant and examine the circumstances of each case to ensure that the constitutional right to fair labour practices, more particularly to a dismissal that is fair, is afforded to employees.
[37] Against the above principle, it is accepted that workplace policies against drug and alcohol use are standard and are aimed at complying with section 8(1) of the Occupational Health and Safety Act (OSHA)[16], which places an obligation on every employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees. Aligned to section 8(1) of OSHA is Regulation 2A, which places an obligation on the employer not to permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
[38]…Disciplinary Code of Conduct lists a number of offences, and it only makes reference to ‘Being under the influence of alcohol or intoxicating drugs at work’. There is no reference to an offence related to ‘failing a breathalyser test’.
[39] From the principles set out in Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (Samancor)[17], it is apparent that a clear distinction is made between failing a breathalyser test and being under the influence of alcohol. The Court had accepted that whilst a breathalyser test is a useful screening tool for access to the workplace and generally a reliable and easy method for employers to determine whether employees are under the influence of alcohol, it does not however permit an employer from disregarding any other evidence that may point to whether an employee is under the influence of alcohol . It was further held in Samancor that breathalyser tests are permissible as evidence in disciplinary hearings and arbitration proceedings, but their evidentiary value depends on corroborative evidence (e.g. blood test, or physical observation) to prove that someone is under the influence of alcohol or has a certain percentage of alcohol in their system. From these principles, it cannot therefore be correct as submitted on behalf of the Employer, that a positive breathalyser test for alcohol axiomatically means that one is under the influence of alcohol.
[48] In Mofokeng[Head of the Department of Education v Mofokeng and Others (JA14/2014) [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) at paras 30 – 31], it was reiterated that a commissioner must not misconceive the inquiry or undertake the inquiry in a misconceived manner, as this would not lead to a fair trial of the issues. In this case, the Commissioner by failing to consider whether the failure of the breathalyser test led to a conclusion that a rule related to being under the influence of alcohol was breached, effectively misconceived the nature of the enquiry and failed to determine the real issue, thus resulting in an irregularity.
misconduct: failed to honour their contractual obligation of working overtime when instructed by management to do so,
JR1129/20
Echo Prestress (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR1129/20) [2024] ZALCJHB 303 (15 August 2024)
[5]… The specific clause of this agreement reads as follows: “The employee specifically acknowledges that the employer may require the employee to work overtime at a very short notice, including Saturdays”.
[6] During cross-examination by the trade union official, one of the Applicant’s witnesses was asked whether the Applicant was aware of the provisions of section 10 of the Basic Conditions of Employment Act[1] (“BCEA”) which partly reads thus: an employer may not require or permit an employee to work overtime except in accordance with an agreement, which “concluded … with an employee when the employee commences employment or during the first three months of employment, lapses after one year”.
misconduct: Negligence
J533/22
Gumede v Albany Bakery and Others (J533/22) [2024] ZALCJHB 338 (21 August 2024)
“‘Gross Negligence (verbatim)
In that you failed to follow the cash handling procedure on 19 February 2020 and also on the 25 February 2020, you failed to put your daily collection into the safe and you were robbed of an amount of R7 320 on the 1st robbery and 2nd robbed an amount of R2 500.’”
“[35] In National Union of Metalworkers of South Africa and Another v Commission for Conciliation, Mediation & Arbitration & others[(2023) 44 ILJ 1575 (LC) at paras 32 and 35.], this Court held that:
‘[32] Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace.
…
[35] The test for negligence remains the same- whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent, the seriousness of the act or omission, the employee’s awareness of the performance standard required or the procedure to be complied with, the seriousness of the consequences of the act or omission, damages caused and the skills and experience of the employee or the position held by the employee.’”
[36] The applicant’s conduct amounted to gross negligence, and he was correctly found guilty by the commissioner. As previously stated, the applicant was aware of the cash handling procedure, and he failed to follow it. The applicant’s transgressions occurred on 19 and 25 February 2020 respectively. The employer suffered losses as a result of the applicant’s conduct. The applicant’s transgressions were serious.
deemed-dismissal provision: in terms of section 17(3)(b)
JR1866/22
Nkabinde v Public Health and Social Development and Others (JR1866/22) [2024] ZALCJHB 394 (13 September 2024)
[19] This is so because an invalid / wrongful dismissal at common law, which Moshoana J focused on, nevertheless, qualifies as a dismissal for the purposes of the LRA – the essential reason being that the statutory meaning of “dismissal” is not coloured by the lawfulness or otherwise of the action.[12] Indeed, the purpose of the wide definition of “dismissal” is to extend the LRA’s scope to cover the effective dismissal of employees, irrespective of whether their contracts are lawfully / validly terminated.[13]
“[20] Consistent with this, the SCA effectively settled the issue in question in Solidarity.[14] The employee had referred a dismissal dispute to a bargaining council. The commissioner found that it did not have jurisdiction because the requirements of section 17(5)(a)(ii) (now 17(3)(a)(ii)[15]) had been met, with both this court and the LAC agreeing. In a further appeal, the SCA overturned all three decisions on the basis that the requirements of the section had actually not been met. In a passage that definitively establishes that the consequence of this is that a dismissal (under the LRA) is taken to have occurred, the SCA held:
“[15] … The effect of the council’s order was to dismiss the employee’s claim (that he had been unfairly dismissed) for want of jurisdiction. Having taken the view that it lacked jurisdiction — erroneously as it now turns out — the council did not enter into the merits. Nor could it. … That it must now do. The matter must thus be remitted to it.””
[21] In terms of section 186(1)(a) of the LRA, a “dismissal” is effected where “an employer has terminated employment with or without notice”.[16] This requires the employer to have engaged in an act that effectively brings the relationship to an end.[17] Any act by the employer which results, directly or indirectly, in the termination of employment will suffice.[18]
“23] Where, on the other hand, the employer erroneously regards employment as having been terminated in terms of section 17(3)(a)(i) when the jurisdictional requirements have not been met, the employment relationship obviously does not terminate ex lege. Instead, it is effectively terminated (brought to an end) by the employer’s refusal to pay the employee. This was articulated as follows by Murphy AJA in his minority LAC judgment in Solidarity, which carried the day in the SCA:[19]
“[41] Effectively, by terminating the payment of remuneration to the second appellant, albeit on the incorrect categorization of his conduct as a deemed discharge, the third respondent refused the implicit tender of his available services and terminated the contract.””
26] In the result, I am not persuaded that the applicant’s review application is misconceived on the bases contended by the Department.
misconduct: either directly or indirectly in an act of soliciting and/or extortion (i.e. corruption)
JR857/21
South African Municipal Workers Union obo Moabi and Others v South African Local Government Bargaining Council and Others (JR857/21) [2024] ZALCJHB 397 (30 September 2024)
[31] Finally, the Commissioner referred to the case of True Blue Foods (Pty) Ltd t/a Kentucky Fried Chicken v Commission for Conciliation, Mediation and Arbitration and others[ [2015] 2 BLLR 194 (LC); [2014] ZALCD 2.] (True Blue Foods) to justify her finding against all three officers as a collective, stating that “there is no need to prove individual culpability in a case of team misconduct”.
disciplinary requirements: fiduciary duties
JR1086/21
Department of Sports, Arts and Culture and Recreation v General Public Service Sector Bargaining Council and Others (JR1086/21) [2024] ZALCJHB 398 (30 September 2024)
“[25] In dealing with the allegation of the breach of fiduciary duty, the Arbitrator considered the Oxford Dictionary of the breach of fiduciary duty. In her research, she found that the breach of fiduciary duty takes place when a person behaves in a manner that contradicts their duty.
[26] She goes on to state that “in my view, it is when a person failed to act in good faith. The question to be answered is how did the Applicant act in bad faith?”[13]”
[39] For fiduciary duties to arise, there must, within the particular relationship concerned, be specific contractual obligations, which the employee has undertaken which have placed him in a situation where equity imposes these rigorous duties in addition to the contractual obligations.[17]
[40] In Helmut Integrated Systems v Tunnard[(2006) EWCSA Civ 1735 Para 37] the Court of Appeal stated that it is now commonplace to observe that not every employee owes obligations as a fiduciary to his employer.
“[41] My brother, Moshoana J has held in RFS Administrators (Pty) Ltd v Sean Lindo Samons and Others[Labour Court Case Number JS64/17 at Para 34] that:
“The prevailing view therefore is that all employees do not necessarily or automatically owe fiduciary duties to the employers. Circumstances may arise in the context of an employment relationship, or arising out of it, which, when they occur, will place the employee in the position of a fiduciary. Whether an employee has placed himself or herself in a position where he must act in the interest of his employer will depend on the terms of employment and the nature and purpose of the employee’s functions, duties, and responsibilities.””
misconduct: Driving under influence of alcohol – Collision with company issued vehicle – Blood alcohol content four times over limit – Finding that dismissal was an inappropriate sanction – Review – Investigation withdrawn due to employee’s dishonesty – Reflects lack of remorse and trustworthiness – Commissioner erred in assessment of nature of information before employer – Failed to consider seriousness of the misconduct – Decision on sanction unreasonable – Reviewed and set aside – Applicant’s dismissal was fair.
JR1584/21
South African Breweries (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JR1584/21) [2024] ZALCJHB 383 (4 October 2024)
“[48] The lack of appreciation and knowledge of the fourth respondent’s true state of intoxication was clearly a material factor that influenced SAB’s decision not to pursue disciplinary proceedings and dismiss the fourth respondent at the time immediately following the incident.
[49] Finally, the Commissioner clearly failed to take into account the seriousness of the misconduct in question which was a breach of the legal alcohol consumption limit while driving, a disregard for the life and safety of both the fourth respondent and other road users, and the fact that the recommended sanction under SAB’s policy for such misconduct was a dismissal.”
misconduct: when executing duties allows for use of force, within limits
JR1479/21
Mafete v Commission for Conciliation, Mediation and Arbitration and Others (JR1479/21) [2024] ZALCJHB 418 (17 October 2024)
Customs official – Conduct when executing duties allows for use of force, within limits contemplated in Customs Act – Entitled to raise provisions of Act as a defence to justify conduct when charged with assault when executing duties – Provided such conduct was necessary to stop a person from evading paying fees levied against their dutiable goods – Award reviewed and set aside – Dismissal substantively unfair – Customs and Excise Act 91 of 1964, s 4(10).
misconduct: unlawful money-lending scheme at work, It found that, inter alia, Mr Zola (a senior artisan) was involved in loaning money to employees, at interest rates of 50%.
JR221/22
Kaweng v South African National Biodiversity Institute and Others (JR221/22) [2024] ZALCJHB 401 (18 October 2024)
[19] This notwithstanding, I should mention that even if the money-lending scheme was somehow not in breach of the NCA, the commissioner’s decision to uphold the applicant’s dismissal would, nevertheless, have been reasonable. For the duration of 2017, the applicant participated in the money-lending scheme at work – with fellow employees apparently having been charged exorbitant interest rates – and there was evidence of it having caused disruptions to the workplace (even if this was caused by the applicant’s partner, Mr Zola). Although it might be considered harsh, a decision to the effect that this constituted serious misconduct warranting dismissal, nevertheless, falls within a range of reasonableness,[4] and is thus not reviewable.
misconduct: insubordination
JR10/20
Matsopa Minerals (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR10/20) [2024] ZALCJHB 451 (18 November 2024)
“[33] In Exxaro Coal Mpumalanga Ltd v CCMA & Others[Unreported judgment, case No: JR 269/11, delivered 13 January 2015 at para 15.], This Court held that:
‘…Should it be shown that the instruction was lawful, it would be the end of the enquiry. If it is found that the instruction was lawful, the expectation is that the employee to whom such an instruction was issued should have complied. It will have little, if any, to do with whether the instruction related to the employee’s job description because it will never be a justification for an employee to refuse lawful instructions merely because the instructions are not [his or her] direct functions.’ “
“35] In Sylvania Metals (Pty) Ltd v M.C Mello N.O and others,[(JA83/2015) [2016] ZALAC 52 (22 November 2016) at para 17] the Labour Appeal Court held that:
‘Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employer’s lawful authority. It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employer’s authority even where an instruction has not been given.’”
“[36] In my view, the sanction of dismissal was an appropriate sanction. Manoto’s conduct amounts to gross insubordination.
“
misconduct: offence of absenteeism
JR845/2021
Sithole v Commission for Conciliation Mediation and Arbitration and Others (JR845/2021) [2024] ZALCJHB 453 (18 November 2024)
“[18] In Malimba v Commission for Conciliation, Mediation and Arbitration and Others[[2021] ZALCJHB 2.
], this Court had the following to say where an employee was absent for one day without permission:
‘[24] The offence of absenteeism requires fault on the part of an employee, and in considering the fairness of a dismissal in such cases, the Commissioner was required to inter alia, examine factors such as the duration of the absence, the nature of the Applicant’s job, previous warnings, the reason for absence, and whether the Applicant attempted to contact the Employer during the period of absence.’”
misconduct: declare your business relationship, Outside Business Interest Policy (“OBI”)
JR1807/20
Kgomo v Sello N.O and Others (JR1807/20) [2024] ZALCJHB 461 (21 November 2024)
[14] In light of what is set out in paras 12.1, and 12.2 above, there can be little doubt that breaches of the OBI policy constitute serious misconduct. The employer cannot be faulted for this approach. It was entitled to take strong measures to protect its business and its reputation.
[15] The Conflict of Interest and the Outside Business Interest policies was designed to protect the interests of the bank, but they are also bound up with the professional and ethical standards expected from employees. Thus, breach of such policies reflected directly on the breakdown of the trust relationship.
[17] On the evidence before the commissioner, the applicant was guilty of acting in breach of the Conflict of Interest and the Outside Business Interest – key policies designed to protect the employer. The misconduct was viewed and treated by management as serious. When determining a fair sanction, the commissioner must consider the totality of circumstances.[19] The commissioner must consider the importance of the rule that had been breached, the reason the employer imposed the sanction of dismissal, and the basis of the employee’s challenge to the dismissal. In addition, the commissioner will consider the harm caused, whether additional training and instruction may result in the employee not repeating the misconduct, and the effect of dismissal on the employee and his or her long-service record.
18] Here, on the evidence, it appears that no harm resulted from the misconduct. However, the misconduct remained serious because of the risk, including reputational risk, to which the bank was exposed. The rules breached were important inter alia because they related to ethical and professional conduct on the part of senior employees. Furthermore, additional training or instruction would not have assisted.
misconduct: The Court disregarded the fact that, on their own version, the respondents had not disputed that they updated their passwords regularly and had not denied that passwords should be safeguarded to protect the integrity and confidentiality of the system and prevent misuse. Since the conspectus of evidence was not properly considered in the manner required, the decision of the arbitrator fell outside of the ambit of reasonableness required and the award therefore ought properly to be set aside on review. In finding differently the Labour Court erred.
JA141/2022
Gauteng Department of Education v General Public Service Sectoral Bargaining Council and Others (JA141/2022) [2025] ZALAC 2; [2025] 5 BLLR 435 (LAC) (22 January 2025)
Ghost employee fraud – Misconduct involving appointment and payment of ghost employees – Dismissals found substantively unfair – Appeal – Obtained respondents’ PERSAL credentials which were used to effect fraudulent transactions – Sufficiency of evidence – Respondents failed to tender explanation how updated passwords for two years could have been repeatedly obtained – Decision fell outside of ambit of reasonableness – Appeal upheld.
misconduct: acted outside your mandate / authority; Grossly Negligent,
JA 107/22
Standard Bank of South Africa v South African Society of Bargaining Officials and Others (JA 107/22) [2025] ZALAC 10 (27 February 2025)
CCMA: Policy was silent on Ms Ngcobo’s responsibility in the circumstances that she was charged for gross negligence under and that Ms Ngcobo be reinstated because she was remorseful and she never acted in a dishonest manner
[3] The Commissioner held further that the form of misconduct complained of is one that “can be managed to coaching and training taking into account that the applicant was only one year in service”.[3]
[11] The Commissioner noted that negligence entails failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person, and that it was probable that Ms Ngcobo could not have foreseen the potential harm.
[25] Even if Ms Ngcobo was the one to make the enquiries as to the validity of the lease agreement the question is whether this was an omission that could lead to a breakdown of trust between the employer and the employee. Was Ms Ngcobo dishonest in any of her responses when this failure to enquire was discovered by Ms Mabuza and she requested a response from Ngcobo?
EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2019) 40 ILJ 2477 (LAC) at 19, hereinafter referred to by the employee’s name, Brett Danney.
27] The question is whether Ms Ngcobo failed to exercise the standard of care that can reasonably be expected of her through conduct that caused loss or potential loss to the employer
[38] Danney had disappointed his employer very early on as an employee, hence the justification to dismiss him. Herein, Ms Ngcobo has not displayed any gross negligence or dishonesty. She is not a candidate for dismissal. There is no evidence that she would repeat her conduct to usurp the functions of a line manager if the Housing Policy prohibits a consultant or HCSS staff member from signing a PRU.
47] Mkhatswa [2000 (1) SA 1104 (SCA) at 112H, para 23.] alerts us that “foresight of the reasonable possibility of harm”, not “mere possibility of harm” is the required test.
[48] Taking into account Ngcobo’s evidence as a whole and the circumstances leading to her signing the PRU, together with her honest response to Ms Mabuza, it can hardly be said that she had the foresight of the reasonable possibility of harm befalling the employer.
misconduct: Police loss of firearms – Employee failing to safeguard key to strongroom and safe
PA 13/2023
Minister of Police v Safety and Security Sectoral Bargaining Council and Others (PA 13/2023) [2025] ZALAC 14 (4 March 2025)
Employee failing to safeguard key to strongroom and safe – Arbitrator finding dismissal too harsh and ordering reinstatement – Labour Court dismissed review application – Arbitrator found general state of negligence at police station – Found that blame could not only be placed on employee – Conduct of station commander was wanting in number of respects – Employee appeared to be scapegoat for clearly inadequate safety measures – Appeal dismissed.
misconduct: insubordination
JA27/2024
Department of Correctional Services v Kutu and Others (JA27/2024) [2025] ZALAC 17; [2025] 6 BLLR 551 (LAC); (2025) 46 ILJ 1331 (LAC) (14 March 2025)
[25] When it comes to the appropriateness of sanction of dismissal, in Palluci Home Depot (Pty) Ltd v Herskowitz and Others,[6] this Court, likewise confronted with a case of insubordination, stated that “… failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to, or defiance of the authority of the employer may justify a dismissal, provided that it is wilful (deliberate) and serious”.
misconduct: Crane accident – Crane operator provided employee with incorrect load chart
JA 52/24
Glencore Operations South Africa (Pty) Ltd v Taala and Others (JA 52/24) [2025] ZALAC 23; [2025] 6 BLLR 559 (LAC) (27 March 2025)
Causing R5,6 million in damages – Alleged that employee was negligent for failing to verify rigging details – Absence of any written rule or procedure mandating such verification – Failure to lead evidence directly concerned with source of obligation – Evidence did not unequivocally establish employee’s negligence
[28] The appellant’s representative further appealed to a general duty not to act in a negligent manner and submitted that, ultimately, the true gravamen of the appellant’s complaint is that the employee failed to perform his duties at the level that his skill set required. This was not the case made out by the appellant at the arbitration hearing.
misconduct: charged with gross insubordination, gross insolence and inappropriate workplace conduct
DA7/2024
CCI Call Centres (Pty) Ltd v Pinn (DA7/2024) [2025] ZALAC 24 (17 April 2025)
[16] In short, the employee was revealed by the evidence to be an employee who was prepared not only to undermine a superior manager but to hold his employer to ransom and potentially prejudice thousands of his co-employees solely on account of a personal pique. The Labour Court did not engage with any of this evidence, nor did it set out why this evidence could not rationally support the arbitrator’s conclusion that any continued employment relationship would be intolerable.
a deemed dismissal in terms of section 17(3)(a)(i)
CA17-2024
Bonakele v Department of Health (CA17-2024) [2025] ZALAC 34 (4 June 2025)
“[18] Although a deemed dismissal in terms of section 17(3)(a)(i) is one by operation of law, it is not simply brought into effect after the expiry of the 30-day period. The facts must support the provision being brought into operation against an employee and the conduct of the employer must illustrate a clear intent to rely on such provision.
[19] There can be no doubt that in the facts of this matter that, as was the case in Gangaram,[8] section 17(3)(a)(i) was not a course of action available to the respondent. This was so given that the respondent was aware of the appellant’s whereabouts, the reasons for it and the respondent had elected not to invoke the provision when it effectively suspended the appellant from duty on 14 February 2023 and indicated its intent to proceed with disciplinary action against her. The facts show that after giving notice that it intended to pursue such disciplinary action, section 17(3)(i) was invoked by the respondent as an afterthought.”
[17] The Labour Court was correct in finding that by so doing the respondent effectively suspended the appellant from duty; and by the time she was given notice of the termination of her services in terms of section 17(3)(a)(i) on 10 March 2023, she had already been effectively suspended from work for almost a month. It followed that the respondent had on 14 February 2023 already taken a decision not to invoke the provisions of section 17(3)(a)(i) but to discipline her for misconduct. It was therefore not open to it after 14 February 2023 to change course and revert to its earlier expressed intent.
dishonesty
JR165/23
SASBO obo Neville v Standard Bank Judgment and Others (JR165/23) [2025] ZALCJHB 31 (29 January 2025)
“[14] This brings us to the issue of intention, as an element of dishonesty. Our courts have described dishonesty a generic term embracing all forms of conduct involving deception.[Nedcor Bank Ltd v Frank and Others (DA4/01) [2002] ZALAC 11 (8 May 2002) at para [18]] It is conduct emanating from lack of integrity; which includes willingness to steal, cheat, lie or act fraudulently. Furthermore, deceitfulness “can manifest itself in various forms, which include providing false information, non-disclosure of information, pilfering, theft and fraud”. Dishonesty plainly requires the intention to deceive.
“
“[13]…3.3 In the circumstances, there has been no genuine acknowledgement of wrong doing by the applicant. The point is well illustrated in De Beers Consolidated Mines Ltd v CCMA & others[(2000) 21 ILJ 1051 (LAC)] where Conradie JA had the following to say:
“[25] This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great.” (own emphasis)”
Unlawful banking practices – Breach of account activation rule – Applicant used her own funds to activate 99 accounts to meet sales targets – Admission of misconduct – Commissioner’s decision of substantially fair dismissal was reasonable – Supported by evidence – Applicant’s conduct was dishonest – Acted deliberately with intention to deceive – Dismissal justified – Claims of remorse and inconsistent discipline unsubstantiated – Application dismissed.
intimidating and threatening
JR1258/21
AECI Industrial Chemicals, A Division of AECI Limited v Lelaka and Others (JR1258/21) [2025] ZALCJHB 53 (31 January 2025)
long service of 28 years and clean disciplinary record
[21] In view of the above, the third respondent’s decision cannot be faulted. The nature of the misconduct was not really detrimental or bringing the applicant’s business to a compromise. The third respondent’s opinion that the sanction of a final written warning should have been imposed on the first respondent clearly points to the effect that whatever issues that existed between Ms McIlroy and the first respondent required a conflict management exercise which the applicant should have undertaken.
Trust relationship
JR1258/21
AECI Industrial Chemicals, A Division of AECI Limited v Lelaka and Others (JR1258/21) [2025] ZALCJHB 53 (31 January 2025)
“[14] In Autozone v Dispute Resolution Centre of Motor Industry and Others[2] the Labour Appeal Court (LAC) at paragraphs 11 and 12 had this to say:
“[11] Consequently, the only issue on appeal is whether Sikhakhane’s conduct breached the trust relationship so as to render the continuation of the employment relationship intolerable.
[12] Undeniably, the evidence on the issue is somewhat thin. An employer relying on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible.”
“
[15] The above dicta justifies the applicant’s submissions that it is not in all cases that the employer must lead evidence to establish that the trust relationship is broken down. The facts of the matter driven by the nature of the misconduct have a bearing in determining whether the trust relationship is broken down. Simply put; the underlying factors to the nature of the misconduct and circumstances of the dismissal may be sufficient to render it unnecessary to lead such evidence on trust relationships.
“The LAC in the Autozone decision made an order upholding the dismissal of an employee who was dismissed for dishonesty and deceitful conduct in circumstances where the employer had not led evidence on the breakdown of the trust relationship. The following was said in paragraph 13:
“[13] Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee. It will be difficult going forward for any task involving a measure of discretion or reliance to be entrusted to the deceitful employee. The operational requirements of the employer alone, therefore, may very well justify the dismissal. An employer is entitled to have a driver it can rely on to act in good faith to advance and protect its interests. Sikhakhane’s conduct shows that he is not such a driver. It was not necessary for Autozone in such circumstances to have produced evidence to show that the employment relationship had been irreparably destroyed. The nature of the offence and the manner of its commission support a conclusion that the continuation of the relationship had become intolerable. The employer cannot reasonably be expected to retain Sikhakhane in its employ. Hence, the finding to that effect by the arbitrator is one that a reasonable decision-maker could reach. There was accordingly no basis for the Labour Court to set aside the award.””
“[16] The approach taken in the Autozone decision was not new to the LAC. It was previously adopted in Impala Platinum Ltd v Jansen and Others[3] where the Court dealt with the dismissal of the employee who violated the safety regulations and remarked as follows:
“[20] The Commissioner rightly found that Jansen’s conduct went to the root of the employment relationship deserving of the severest sanction. This cannot be faulted. In fact, it would be unfair to expect the Appellant to retain Jansen in its employ where Jansen had not only displayed gross misconduct in failing to comply with statutory regulations but also contravened the duty to act in good faith by promoting his wife’s business to Appellant’s service providers thereby compromising fairness and honesty within the Appellant’s business relationships. In the circumstances, there was no need to lead any evidence of a breakdown in the relationship, as it was obviously the case. This ground of appeal thus succeeds.
“
“[17] The Court also noted the path followed in Edcon calling for the need for the employer to lead evidence on the breakdown of trust relationship. This was influenced by the nature of the charge[4] which required sufficient evidence of breakdown of trust relationship to sustain the sanction of dismissal.
[18] In a similar matter where the employee proffered a version that was seen as far-fetched the LAC still found in De Beers Consolidated Mines Ltd (Venetia Mine) v National Union of Mineworker and Others[5], that the dismissal was not an appropriate sanction. In essence, the employee’s failure to disclose a relationship with the employer’s service providers was found to be not so serious as to impede the restoration of the employment relationship. The Court found the dismissal to be unfair in so far as the sanction of dismissal had not been appropriate. It went on to award a relief of reinstatement without backpay.”
[19] It appears from the above decisions that in a situation of misconduct that is not characterized by dishonesty and/or deceit where long service and a clean record are a feature, the possibilities of restoration of the employment relationship are realizable. In casu, the third respondent reasoned that the employer’s leading evidence on the breakdown of trust relationship was the default position.
incapacity illness: medical separation package
JR1532/21
Sandani v Commission for Conciliation, Mediation and Arbitration (“CCMA”) and Others (JR1532/21) [2025] ZALCJHB 52 (3 February 2025)
107. In Parexel International (Pty) Limited v Chakane and Others [2019] 11 BLLR 1245 (LAC), the Court held that: “It is self-evident that whether an employee is willing and able to work and when he or she may be in a position to do so are material considerations to which regard must be had when considering an employee’s incapacity, whether she has been absent from work for an unreasonably long period of time and whether alternatives to dismiss exist.”
…The Applicant was never able to work. He could not cope with alternative work provided. It was almost four years since the Applicant was injured. Even after that prolonged period, the Applicant could still not sit for more than two hours, he requested on several occasions, time for leg stretch. He further requested to participate in the process standing. The Applicant had never attempted to return back to work in two years nine months that he was paid. These are all evident that the Applicant would not be able to work.
[71] There was nothing before the Commissioner to demonstrate that the Disability Management Policy had not been implemented by the Third Respondent, when one considers that such policy was in line with the provisions of the Mine, Health and Safety Act[10] (MHSA) and the Regulations stipulated in section 20(2) thereof.
“99] Item 11 of the same Code provides that:-
“Any person determining whether a dismissal arising from ill health or injury is unfair should consider:-
(a) Whether or not the employee is capable of performing the work;
(b) If the employee is not capable –
(i) The extent to which the employee is able to perform the work;
(ii) The extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
(iii) Availability of any suitable alternative work. “
misconduct: employee dismissed for falsely alleging that her colleague impregnated her
JR831/24
Legend Logistics v SATAWU obo T.M and Others (JR831/24) [2025] ZALCJHB 85 (27 February 2025)
[10] At the disciplinary hearing, the employee had written a statement in which she accepted that her allegation that her colleague was the father of her child was incorrect, in light of the results of the paternity test.
15] The employee averred that this incident did not involve the employer as it involved conduct outside the workplace.
[20] In Edcon Limited v Cantamessa and Others,[4] the Court held that “the general rule is that an employer has no jurisdiction or competency to discipline an employee for conduct that is not work related which occurs after working hours and away from the workplace”.
22] Importantly, the employee’s conduct did not amount to misconduct. She was clearly not dishonest at all. An allegation of dishonesty would presuppose that she knew that her colleague was not the father of her child but she nevertheless accused him of being the father of her child. However, this proposition is defeated by the fact that the employee seemingly had no objection to her colleague taking a paternity test. She had privately called upon him to take such a test before approaching the maintenance court for its intervention once he had rejected her request. She would not have made such a request if she knew that its results would contradict her allegation that her colleague was the father of her child, as this would defy common sense or logic, and there is no evidence that she was illogical to that extent.
[23] The mere fact that the employee’s suspicion was incorrect does not mean she committed misconduct. The employer unfairly focused on the feelings of the male colleague who may have been embarrassed by the allegation that he was the father of the employee’s child, and ignored the need to determine with certainty whether the employee’s colleague was the father in order to ensure that the child’s right to maintenance was properly upheld. The employer was insensitive towards the employee as a woman and a mother and it is unacceptable that she had to lose her job as a result of these baseless allegations that were brought against her.
incapacity ill health
C238/2022
Le Franschhoek Hotel v Commission for Conciliation, Mediation and Arbitration and Others (C238/2022) [2025] ZALCJHB 84 (3 March 2025)
Chef took control of fire-fighting during kitchen fire – Later experiencing panic attacks and anxiety – Was receiving treatment – Commissioner finding dismissal substantively unfair – Item 10(4) of Code of Good Practice – Found that injury was workplace related and greater responsibility rested on employer – Chef reported himself ready to assume role – Experts who treated him confirmed his readiness – Failure or refusal to permit chef to assume his position constituted dismissal – Review application dismissed.
“[16]…7. PROGNOSIS
Should Mr. Ferus be treated optimally by a Psychologist in conjunction with an inpatient programme he would be able to function again on the same level as before. Obviously his condition would be re-evaluated after his treatment.”
“26] The commissioner considered Ferus’ incapacity from the perspective advanced by the Code of Good Practice on dismissal[1]. She had particular regard to item 10(4) of the Code which states:
Particular consideration should be given to employees who are injured at work or who are incapacitated by [a] work related illness. The court have indicated that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
“
“36] Molemela AJA stated in Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others[2], the following when considering items 10 and 11 of the Code:
My reading of item 10 and 11 gives me the impression that an incapacity enquiry is mainly aimed at assessing whether the employee is capable of performing his or her duties, be it in the position he or she occupied before the enquiry or in any suitable alternative position. I am of the view that the conclusion as to the employee’s capability or otherwise can only be reached once a proper assessment of the employee’s condition has been made. Importantly, if the assessment reveals that the employee is permanently incapacitated, the enquiry does not end there, the employer must then establish whether it cannot adapt the employee’s work circumstances so as to accommodate the incapacity, or adapt the employee’s duties, or provide him with alternative work if same is available.”
serious safety transgressions
JR09/2022
Northam Platinum Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR09/2022) [2025] ZALCJHB 128 (5 March 2025)
Gross negligence – Electrician found injured at sub-station – CCMA commissioner finding dismissal unfair – Found that employee did not intend to work and not proven how he sustained injuries – Despite findings of serious safety transgressions – Failed to complete hazard assessment – Not wearing correct PPE – Attended location without his assistants and tools – Award is reviewed and set aside – Dismissal was substantively and procedurally fair.
misconduct: Sleeping on duty
JR 637/23
Sibanye Gold Protection Service Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 637/23) [2025] ZALCJHB 130 (27 March 2025)
Versions of supervisor and employee mutually exclusive – Whether employee was sleeping when found by supervisor – Arbitrator finding for employee and that dismissal unfair – Accepting employee’s evidence without corroboration – Improbabilities of supervisor staging photo of sleeping employee – Mine dealing with illegal miners – Sleeping on duty taken extremely seriously – Award set aside – Dismissal was substantively fair.
“[25] If we focus on the attack on Du Plessis’s evidence under cross-examination, what factors did the arbitrator have to weigh up to make a finding whether Njani’s eyes were closed? Njani herself said she was intending to ‘relax’ when she sat down. She had claimed that Du Plessis was aware that she had a condition which was ascribed to her spiritual calling, as if to suggest she was suffering from impairment which might excuse her actions. He denied ever being advised of the same. It is important to note that it must be mentioned that much of her defence was based on the fact that other persons who had been found guilty of sleeping on duty, were not dismissed, and in those cases the employees were either on some medication or had worked excessive hours, which had impaired their ability to remain awake. Njani denied Du Plessis took a photograph of her but did say he had a cell phone in his hand when she first saw him. Du Plessis said he would not have taken a photograph in the first place if Njani had been awake. The photo, though blurry, does not show even a glimmer of light on the reclining figure’s face that might hint at an eye reflection of a camera flash or light, which tends to support his version. If Njani was asleep, she would have been unaware of Du Plessis taking a photo. Once it is accepted as more plausible that a photo was taken, showing her in the recumbent position, Njani’s version that she was awake is hard to reconcile with her saying nothing to DP at the time the photo was taken.
[26] What emerges from the above, is that there are serious difficulties Njani had in putting up a plausible version that she was awake when Du Plessis found her at the guardhouse. Her own evidence that she was sitting in the chair and relaxing is consistent with the image captured in the photograph. Her version that it was not her in the photograph is inherently implausible for the reasons discussed and Du Plessis was not seriously challenged on that issue. Her bald denial that a photograph was taken of her is irreconcilable with the evidence which strongly supports the opposite conclusion, namely that it was taken of her at a time when she was asleep and she would not have been aware of it. No plausible alternative explanation was offered why her eyes would not have been visible, when she was photographed in the glare of a flash photograph and a torch. It also makes no sense that Du Plessis would have gone to the trouble of taking the photograph if Njani was sitting in the chair looking at him.”
misconduct: Negligence
JR15/24
Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025)
“41] Appositely, the Court in National Union of Metalworkers of SA and Another v Commission for Conciliation, Mediation and Arbitration and Others[(2023) 44 ILJ 1575 (LC) at para 32.
] gave the following exposition of what would be expected from an employee in the particular position of the first respondent:
‘Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace …’”
“The Court in National Union of Metalworkers added:[33]
‘The test to be applied and with whom the employee is compared, is that of a reasonable employee, having experience and skill comparable with that of the employee charged, in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. …’”
“[]…The following dictum in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2019) 40 ILJ 2477 (LAC) at para 16. See also SA Police Service v Magwaxaza and Others (2020) 41 ILJ 408 (LAC) at paras 42 – 43.] is apposite in casu:
‘Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards.’”
“A decided in Gcwensha v Commission for Conciliation, Mediation and Arbitration and Others[38]:
‘An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, failing outside the periods of applicability of final written warnings. An employee’s duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances …’”
misconduct: trust relationship
JR15/24
Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025)
“[49]…This evidence by Emery was not contradicted, and the first respondent led no evidence to the contrary. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(2000) 21 ILJ 1051 (LAC) at para at para 22. See also Rustenburg Platinum Mines Ltd (Rustenburg Section) v National Union of Mineworkers and Others (2001) 22 ILJ 658 (LAC) at paras 21 – 22; National Union of Metalworkers (supra) at para 54; Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (2024) 45 ILJ 369 (LC) at para 70.] the Court said:
‘A dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. … ‘
[50] If the third respondent properly considered the evidence relating to the trust relationship, he could not have reasonably come to the conclusion that he did, of only a ‘dented’ trust relationship. Instead, and on the facts, the trust relationship was not just dented, but scrapped. This trust relationship factor in casu accordingly works in favour of dismissal as being a fair sanction. The following dictum in Miyambo v CCMA and Others[(2010) 31 ILJ 2031 (LAC) at para 13.] is particularly apposite, where it was held:
‘It is appropriate to pause and reflect on the role that trust plays in the employment relationship. Business risk is predominantly based on the trustworthiness of company employees. The accumulation of individual breaches of trust has significant economic repercussions. A successful business enterprise operates on the basis of trust …’”
misconduct: True remorse
JR15/24
Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025)
“[52]…True remorse was explained in Absa Bank Ltd v Naidu and Others[44] as follows:
‘… genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.’”
[53] In simple terms, without the requisite remorse, it is not possible to restore the relationship of trust that forms the foundation of the employment relationship. As held in De Beers supra[45] the Court said: ‘… Acknowledgment of wrong doing is the first step towards rehabilitation. In the absence of a re-commitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken.’
misconduct: sanction
JR15/24
Standard Bank Insurance Brokers v Dlamini and Others (JR15/24) [2025] ZALCJHB 147 (7 April 2025)
“[56]…Overall considered, and if the third respondent had proper, reasonable and rational regard to all of these factors, the only reasonable conclusion he could have arrived at is that the dismissal of the first respondent was justified, and fair. It can hardly be better described than the following dictum in Solari v Nedbank Ltd and Others[(2014) 35 ILJ 3349 (LAC) at para 29.] where the Court said the following, specifically referring to conduct of a commissioner where it came to deciding if dismissal was an appropriate sanction:
‘… it is clear on the totality of the evidence before the commissioner that he did not properly consider all the evidence and therefore arrived at a conclusion that a reasonable decision maker could not reach then the award ought to be set aside. The same will apply when the commissioner makes certain inferences from the proven facts that are totally out of sync with those facts. The inference reached without a proper consideration of the proven facts would be an unreasonable decision or a decision which a reasonable decision maker could not reach …’”
misconduct: Breach of health and safety rules, standards and procedures
JR122/23
Sibanye Rustenburg Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR122/23) [2025] ZALCJHB 212 (6 May 2025)
[17] Judging from the award itself, the commissioner shows little appreciation of the importance of the safety rules, or the reason why the employer imposed the sanction of dismissal.
[16] In Sidumo and another v Rustenburg Platinum Mines Ltd and others[8] at para [78] the Constitutional Court stated that the commissioner must, of necessity, “…take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.” (own emphasis)
[18] Our courts have found that where a commissioner fails to adequately consider the seriousness of the misconduct, such as offences involving dishonesty, this could lead to an unreasonable outcome susceptible to review.[9] Similarly, in relation to sexual harassment, the court held that the commissioner’s failure to give adequate consideration to the nature of the misconduct will result in an unreasonable outcome.[10] These judgments illustrate that, where a commissioner goes horribly wrong in his appreciation of the severity of the misconduct, makes findings in mitigation that are not sustainable, or does not have proper regard to the material facts in the determination of penalty, the outcome is susceptible to review.
[19] While long service remains a factor in mitigation, our courts have warned that this is no guarantee against dismissal. As Conradie JA said in De Beers Consolidated Mines v CCMA and others:[11] ‘the risk factor is paramount. If, despite the prima facie impression of reliability arising from long service, it appears that in all the circumstances, particularly the required degree of trust and employee’s lack of commitment to reform, continued employment of the offender will be operationally too risky, he will be dismissed”. The LAC explained that dismissal is not an expression of moral outrage, or an act of vengeance. Dismissal is, or should be, a sensible operational response to risk management.
misconduct: refusal to report for work due to health and safety
JR2790/21
National Health Laboratory Services v Commission for Conciliation, Mediation and Arbitration and Others (JR2790/21) [2025] ZALCJHB 161 (7 May 2025)
“[70] The right of an employee to refuse to do work that is unsafe and poses a serious danger is recognised internationally. During 1981, the parties to the ILO adopted the Convention on Occupational Safety and Health (No. 155); article 13 states:
‘A worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent and serious danger to his life or health shall be protected from undue consequences in accordance with national conditions and practice.’
“
“The commissioner’s decision to reinstate the employee without backpay and to impose a 12-month final written warning is reasonable, given that the employee’s failure to physically return to work during the COVID-19 pandemic arose from his status as a highly vulnerable individual.
“
misconduct: gross negligence
JR443/23
Ntombela v Metal and Engineering Industries Bargaining Council and Others (JR443/23) [2025] ZALCJHB 179 (15 May 2025)
[36] According to Grogan,[Grogan Dismissal (2nd ed) at p 246 – 247.] in order to warrant a dismissal at first instance, negligence by an employee must be ‘gross’. Gross negligence may be said to have occurred if the employee is persistently negligent, or if the act or omission under consideration is particularly serious in itself. While in civil law the term ‘gross negligence’ has a technical meaning, in employment law it can be taken to mean negligence that is particularly inexcusable.”
[38] It is not clear on what basis did the commissioner reach a finding that the Applicant was guilty of gross negligence as charged. The SCA in Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas and Another: MV Stella Tingas[12] held that “for a conduct to constitute gross negligence, “the conduct in question must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.”
“[46] The applicant and his witness corroborated each other in respect of the nature of the rule he is alleged to have contravened, the fact that backing plates were never stolen and the fact that the video footage was not clear. The commissioner then opted to exclude the evidence on the basis that it was not put to the witnesses as a result she failed to deal with the merits of the case before her. The LAC in South African Society of Bank Officials (SASBO) and Another v The Standard Bank Of South Africa and Others[14] held that:
‘The trier of fact is expected, in the context of discipline in the workplace, to deal with the wrong committed by an employee even if the charge may have been inelegantly phrased provided that the employee is not significantly prejudiced by the incorrect labelling of the charge.’”
2. order that the dismissal of the Applicant was substantively unfair.
misconduct: Shouting slogan when addressing workforce
JR2709/22
Lufafa Hatchery (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2709/22) [2025] ZALCJHB 194 (21 May 2025)
Shop steward misconduct – Shouting slogan when addressing workforce – Calling manager corrupt – Allegedly made racist and uncalled for remarks, including threats of violence at fellow employee – Conduct escalated tensions between rival unions – Various serious acts of misconduct – Remained unrepentant and unremorseful throughout – His service and clean record cannot rescue him from this kind of behaviour – Only fair sanction is that of dismissal.
“[28] In any event, it was common cause that the third respondent committed various serious acts of misconduct. On several occasions, he behaved in a divisive, insulting, and disrespectful manner toward senior management. He defied instructions issued by management. He suggested that black managers were pawns. He called another manager corrupt, without provocation. He intimidated, or attempted to intimidate, the foreman. His conduct, inevitably, and unnecessarily, escalated tensions between rival unions. He remained unrepentant and unremorseful throughout. His service and clean record cannot rescue him from this kind of behaviour. In the circumstances, the only fair sanction is that of dismissal.
“
misconduct: Negligence
JR 305/2023
Goldfields Logistics (Pty) Ltd v Mulibana and Others (JR 305/2023) [2025] ZALCJHB 210 (28 May 2025)
“[34] In National Union of Metalworkers of South Africa and another v CCMA and others[6] (NUMSA), this Court dealt with the issue of negligence, and it was held that:
‘[32] Negligence, in short, is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person and in the employment context, the employee’s conduct is compared with the standard of skill and care that would have been expected of a reasonable employee in the same circumstances. The reasonable employee with whom the employee is compared must have experience and skill comparable with that of the employee charged. In labour law, negligence is not applied ‘in vacuo’ or against the general standard of a ‘reasonable person’, but it is applied in the context of the particular workplace or industry, considering the performance standards and procedures set by the employer. Negligence is usually established with reference to workplace rules or procedures applicable in the workplace.
…
[35] The test for negligence remains the same — whether negligence, once established, is gross, is a matter of degree, to be determined considering a number of relevant factors. Those factors are inter alia whether the employee is persistently negligent; the seriousness of the act or omission; whether the act or omission is inexcusable; the employee’s awareness of the performance standard required or the procedure to be complied with; the seriousness of the consequences of the act or omission; damages caused and the skills and experience of the employee or the position held by the employee.”
Poor workmanship or negligence – Failure to debrief and submit proof of deliveries – Finding by commissioner of procedurally fair but substantively unfair dismissal – Employee lacked knowledge of rule – Not given adequate time to adapt to local trip procedures – Assessment of negligence was reasonable – Failed to prove that employee knowingly violated a clear workplace standard – Decision fell within bounds of reasonableness – Application dismissed.
misconduct: a conviction of assault
JR133/21
Sasol South Africa (Pty) Ltd Sasol Operations v National Bargaining Council for Chemical Industry and Others (JR133/21) [2025] ZALCJHB 201 (30 May 2025)
“[31] The arbitrator in this case cannot be faulted for arriving at the conclusion that the dismissal was unfair because of the severity of the sanction. Conroy was remorseful for his actions. The facts of this case are different from the facts in the case of Hulett Aluminium. (Pty) Ltd v Bargaining Council for Metal Industry and Others[15], where the court held that:
“ It would, in my view, be unfair for the court to expect the applicant to take back the employee when she has persisted with her denials and has not shown any remorse. An acknowledgment of wrongdoing on the part of the employee would have gone a long way in indicating the potential and possibility of rehabilitation, including an assurance that similar misconduct would not be repeated in the future.””
32] The present case can be distinguished from the cases of the other applicant’s employees who were dismissed by the applicant for assault. In the present case it is not in dispute that Conroy performed his duties well for 35 years. He was competent and efficient in what he was employed to do. Unlike the employee in Hulett Aluminum, he owned up to his wrongdoing and soon apologized to Phoolo and reported himself to his supervisor. He was also willing to undergo anger management courses so as to make sure that he does not repeat the wrong in future.
misconduct: Desertion
JR 2227/21
Sibanye Rustenburg Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR 2227/21) [2025] ZALCJHB 207 (30 May 2025)
Desertion
“[32] In the case of Glencore operations SA (Pty) Ltd v CCMA & Others[7], which are similar to the facts in casu, the court held that the real enquiry was whether the employee was absent without permission.
‘’The fact that where an employer dismisses an employee for reasons related to misconduct, the dismissal shall be considered to be fair if the employee is guilty as charged and the sanction of dismissal is appropriate. Nkosi was dismissed for desertion or absence from duty without the necessary permission. Where a commissioner misconstrues the true nature of the enquiry, he or she is bound to reach a decision that a reasonable decision maker would not reach. In other words, the outcome shall be distorted. The following finding demonstrates that Mashego was barking up a wrong tree:
It is common cause that the Applicant was imprisoned from 17 August until 11 December 2018. The Respondent decided to charge and dismiss the Applicant for failure to inform them about his absence on the days stated above and not for absenteeism or excessive absenteeism during the period of his imprisonment that incapacitated the Applicant from honouring his part of the employment contract.
All the documentary evidence point to the fact of absence without permission. On the charge sheet appears the acronym “AWOP”, which means absent without being permitted. The misdemeanour was not so much the failure to inform but the absence without permission. Absence without permission is a form of misconduct. In terms of section 188 of the LRA a dismissal for reasons of misconduct is fair. Therefore, the real inquiry should have been whether Nkosi was absent without permission. Fact that he was absent, when he was supposed to be present was common cause. Fact that he was not given permission to be absent was also common cause. The following conclusion indicates that Mashego dismally failed to address the relevant issue:
In short it was impossible for the Applicant to freely without serious hindrances inform the Respondent about his predicament because he was imprisoned and as such cannot be blamed for failing to inform the Respondent about his absence. Therefore, dismissal for failing to inform is unfair.”
Ordinarily, an employee has an obligation to fully place his or her services at the disposal of the employer. Once an employee absents himself or herself, he or she is in breach of the obligation. Whether an employee informs an employer about his or her whereabouts that does not detract from the fact that an employee has breached his or her obligations to place his or her services to the disposal of an employer. Where an employee is absent from duty, the employer suffers operationally and unless permitted to be absent that employee commits misconduct even if he or she can inform the employer that he or she is at home or elsewhere and not at work, where he or she is obligated to be. By concentrating on the informing part and ignoring the common cause facts of absence from work and lack of permission, Mashego failed to appreciate the real dispute and the real reason that led to the dismissal of Nkosi.
In light of the undisputed evidence, by being absent for a period of six days without the necessary permission, Nkosi committed a misconduct. The fact that Nkosi was arrested serves as a justification for his absence but does not detract from the fact that he was absent without permission. If an employer does not accept the justification, it does not follow that the dismissal that ensues is bereft of an acceptable reason in terms of section 188 of the LRA. Nkosi was not dismissed for incapacity but for misconduct.
In light of the above, the conclusion I reach is that the award does not fall within the bounds of reasonableness thus reviewable in law.”
“
misconduct: while under the influence of alcohol or intoxicating substance, you drove into the Red Nissan
JR267/2021
SAMWU obo Pelle v South African Local Government Bargaining Council and Others (JR267/2021) [2025] ZALCJHB 213 (4 June 2025)
was taking flu medication
[12] On the issue of the blood test the applicant submitted that he was not aware that his blood was drawn and if it was, it was tampered with because in the statement of the police officer Sergeant Nzaule, it is reflected that when she received the blood kit it was not properly sealed.
25] On the issue of the breathalyser test, it is important to distinguish between testing positive for alcohol on the breath of an employee and such an employee being under the influence of alcohol. Being under the influence of alcohol implies that an employee was not capable of safely performing his duties. In this regard, the breathalyser reading or indication of alcohol on the breath of an employee will be considered in addition to other evidence such as witnesses testifying to the behaviour of the employee at the time. For example, slurred speech, unsteady pace, bloodshot eyes etc, there is no evidence led in this regard. The arbitrator does not even give reasons why he finds the version of the employer believable and probable in this regard. He committed a reviewable irregularity.
misconduct: Fraud
JR1503/22
Makau v Commission for Conciliation, Mediation and Arbitration and Others (JR1503/22) [2025] ZALCJHB 235 (17 June 2025)
“24] Fraud[It is trite that the complainant must establish unlawfulness, intention, misrepresentation and prejudice or potential prejudice.
] remains fraud and does not change colour or have different elements because of the nature of the proceedings – civil or criminal. That is what the LAC in Monare v South African Tourism and others[3] confirmed:
‘It was not unreasonable for the Commissioner to rely on the so-called “criminal law” definition of fraud. Fraud has the same elements even in a civil law context. The first respondent alleged that the appellant was fraudulent and dishonest and it bore the onus to establish those rather serious allegations “clearly and distinctly”, on a balance of probabilities. The fact that the appellant did not comply with the company procedures did not make him guilty of fraud or dishonesty, or even deceitful, as the Commissioner very reasonably found.’[4] [Emphasis added]”
misconduct: poor work performance
JR1503/22
Makau v Commission for Conciliation, Mediation and Arbitration and Others (JR1503/22) [2025] ZALCJHB 235 (17 June 2025)
[43] In this case, the CIPC dealt with the matter as one of poor work performance, led evidence that sought to justify that the applicant was unable to meet the standard of performance per his contract of employment, job description and/or performance agreement and that the quality of his work did not meet the expected or required standard. Considering the fundamentally flawed process followed by the CIPC in processing a poor work performance issue as misconduct, the commissioner should not have perpetuated this flawed process. He should have dismissed the charge on the basis that the CIPC followed a flawed and therefore unfair process. Accordingly, his findings and decision on this charge are a result of a flawed process and are liable to be reviewed and set aside.
[43] In this case, the CIPC dealt with the matter as one of poor work performance, led evidence that sought to justify that the applicant was unable to meet the standard of performance per his contract of employment, job description and/or performance agreement and that the quality of his work did not meet the expected or required standard. Considering the fundamentally flawed process followed by the CIPC in processing a poor work performance issue as misconduct, the commissioner should not have perpetuated this flawed process. He should have dismissed the charge on the basis that the CIPC followed a flawed and therefore unfair process. Accordingly, his findings and decision on this charge are a result of a flawed process and are liable to be reviewed and set aside.
[55] I have found that the applicant is not guilty of the charge of insolence. However, even if he is guilty, the commissioner was required to consider the gravity of the insolence. There was no allegation that the insolence was gross. In Palluci Home Depot (Pty) Ltd v Herskowitz and others[12], the LAC held that the sanction of dismissal should be reserved for instances of gross insolence.[13]
“[57] The charge of poor work performance should not have formed part of the arbitration proceedings, or if it did, as it has, should have been dismissed for non-compliance with the procedure. However, even if it is accepted that the charge was pursued in terms of the appropriate procedure, the commissioner was required to consider item 9 of Schedule 8 of the Code of Good Practice: Dismissal[14], which he did not. The LAC in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others[15] reiterated the approach to be adopted when considering dismissal for poor work performance as set out in item 9. It held that:
‘In order to find that an employee is guilty of poor performance and consider dismissal as an appropriate sanction for such conduct, the employer is required to prove that the employee did not meet existing and known performance standards; that the failure to meet the expected standard of performance is serious; and that the employee was given sufficient training, guidance, support, time or counselling to improve his or her performance but could not perform in terms of the expected standards. Furthermore the employer should be able to demonstrate that the failure to meet the standard of performance required is due to the employee’s inability to do so and not due to factors that are outside the employee’s control.’[16]”
misconduct: vulgar language: Buthelezi said what she was saying was “fuckin shit” while looking directly at her. She claimed a shop steward, Mr E Ramolobela (‘Ramolobela’) said Buthelezi was not supposed to say that, and asked her to forgive him, then told Buthelezi to apologise.
JR 1572/2018
Giwusa obo Buthelezi v AEL Mining Services Limited and Others (JR 1572/2018) [2025] ZALCJHB 225 (20 June 2025)
“[31] Without stating that she found Buthelezi had told Mmboneni she was talking ‘fucken shit’, the arbitrator did find that he directed his foul language at her. This took place in front of a number of other employees from other departments and sub-contractors. Buthelezi never actually apologised even for his own version of what he said. Acknowledging that the use of such language in the workplace is unacceptable is not the same as apologising to Mmboneni for what he said. I am not satisfied a reasonable arbitrator could find an expression of real remorse in Buthelezi’s conduct after the event.
“
misconduct: Attempts to reveal identity of a whistleblower
JR 237/21
Sethibelo v General Public Service Sector Bargaining Council and Others (JR 237/21) [2025] ZALCJHB 250 (26 June 2025)
“Email: “”The information we got suffices but someone from your office phoned the Chairperson of the Portfolio Committee – you need to investigate who leaks information from NAC.
“””
Ms Mangope, was that she (Mangope), was not an employee of DAC and merely reported to the Board of the NAC.
[21] She disputed that Makgoka was an employee of the DAC. Her contention was that the NAC was an independent entity established under a different statute. She conceded that the Board of the NAC was appointed by Minister, and that the DAC exercised oversight over the activities of the NAC as its delivery arm, including its financial matters.
[28]…The Arbitrator had regard to the provisions of sections 1 and 3[3] of the PDA and the applicant’s contentions that she did not know the identity of the whistleblower at the time, and or that the latter was in any event not an employee of the DAC for the purposes of application of the provisions the whistleblowing policy. The Arbitrator concluded that the evidence of the CEO of NAC, Mangope, lacked credibility since the whistleblower, Makgoka, was subjected to a disciplinary process flowing from her identity being revealed.
“[29] The Arbitrator also considered the provisions of section 210 of the Labour Relations Act (LRA)[4], in regard to the definition of an employee and the presumptions under section 200A of the LRA in establishing whether Makgoka was an employee of the DAC for the purposes of application of its policies on whistleblowers.
[30] Against the above provisions, the Arbitrator concluded that in the light of the nature of the relationship between the DAC and the NAC pertaining to the former’s oversight over the latter; the instructions issued to it; the interdependence; appointment of Boards and payment of salaries etc, the DAC was the ‘broader employer’ of Makgoka for the purposes of the PDA, and therefore she was its employee.”
“[35] The starting point are the provisions of the PDA, which the applicant sought to downplay. In its preamble, the purpose of the PDA is to make provision for procedures in terms of which employees in both the private and the public sectors may disclose unlawful or irregular conduct by their employers or by other employees, and to provide for the protection of employees who make such disclosures.
[36] Certain obligations under section 3B of the PDA are imposed on the person or body to whom a protected disclosure was made, including taking a decision as to whether the matter would be investigated; or whether the disclosure will be referred to another person or body if that disclosure could be investigated or dealt with more appropriately by that other person or body.”
[39]…Equally so, it is irrelevant whether the CEO saw nothing wrong with the email or had not acted on the instruction. In any event, the applicant by virtue of her position and oversight of the NAC had issued the instruction. Of equal irrelevance is the applicant’s contention that at the time that the email was sent to the CEO of NAC the identity of the whistleblower was not known until the release of the Grant Thornton report on 8 February 2017. Clearly her email of 2 February 2017 indicated her intentions notwithstanding the release of the Grant Thornton report six days later. The fact however remains that the applicant sought to have the identity of the whistleblower revealed, rather than have the nature of the allegations investigated.
[40]…It followed that under the provisions of section 4 of the PDA, and to the extent that Makgatho was identified and may have been subjected to any occupational detriment as defined under section 1 of the PDA, this had indeed exposed the DAC and the NAC to liability under Section 4 of the PDA.
[43] An ‘employer’ on the other hand in the PDA, is defined as any person who employs or provides work for any other person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business.
[44] For the purposes of determining this dispute in so far as the status of Makgatho was concerned, of relevance in my view is the definition of ‘organ of state’ in the PDA, which means any inter alia, department of state or administration in the national sphere of government, or any other functionary or institution when exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation. The provisions of section 8(1) of the Public Service Act[8](“the PSA”) further in my view puts the status of Makgatho and others within the NAC to rest, as they clearly provide that “The public service shall consist of persons who are employed in posts on the establishment of departments, and additional to the establishment of departments” A “department” on the other hand is defined in section 1 of the PSA to mean “a national department, a national government component…”.
46] Against these definitions, there cannot be any substance to the contention that employees of agencies of a department are not its employees. These employees are as part of a departmental agency, employed additional to the establishment of a department, and are clearly part of a national government component. Departmental agencies are not independent entities in the strict sense of the word irrespective of the statute under which they were established, in the light of their intrinsic connection to the departments under which they were established.
“Appearances:
For the Applicant: P Kirstein, instructed by Marius Scheepers & Co Attorneys”
16.10.1
misconduct: sexual harassment
JA128/24
Mashele v South African Reserve Bank and Others (JA128/24) [2025] ZALAC 51 (21 October 2025)
[22] The relevant regulatory framework encompasses international labour standards, the Constitution,[4] the Employment Equity Act,[5] and the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code).[6] All of these instruments take as their point of departure the values of personal integrity, dignity, equality, and the necessity for the working environment to be free of sexual harassment.
[23] ILO Convention 2019 (No 190) concerning the Elimination of Violence and Harassment in the World of Work was ratified by South Africa on 29 November 2021. The Convention obliges member states that ratify the Convention to adopt measures to prevent and eliminate violence and harassment (defined to include a range of unacceptable behaviours and practices) in the world of work.
“[24] The Code was adopted in fulfilment of international law obligations consequent on the ratification of Convention 190 and regards all forms of workplace harassment as acts of unfair discrimination. Item 5 of the Code deals specifically with sexual harassment, defined as a form of unfair discrimination on the grounds of sex, gender or sexual orientation. ‘Sexual harassment’ is broadly defined to encompass a range of behaviour and conduct. The Code provides that conduct amounting to sexual harassment may include:
‘5.2.5.4 sexual attention, advances or proposals; or other behaviour, whether explicit or implicit, including suggestions, messages, advances, attention or proposals of a sexual nature;
…
5.2.5.6 verbal conduct such as innuendos, suggestions, hints, sexual advances, comments with sexual overtones, sex-related jokes or insults, graphic comments about a person’s body, inappropriate enquiries about a person’s sex life, whistling of a sexual nature and the sending by electronic means or otherwise of sexually explicit text;’”
“25] The Code recognises that all forms of harassment in the workplace have their roots in an abuse of power. In McGregor v Public Health & Social Development Sectoral Bargaining Council & others[(2021) 42 ILJ 1643 (CC); [2021] 9 BLLR 861 (CC).], the Constitutional Court noted that “[S]exual harassment occurs at the intersection of gender and power, producing a potent stench of subordination, disempowerment and inequality that so seeps through the fabric of our society that it stains its core”. In Campbell Scientific Africa (Pty) Ltd v Simmers and others[[2016] 1 BLLR 1 (LAC); [2015] ZALAC 51.] this Court (per Savage AJA) referred to the role of power dynamics in enabling workplace sexual harassment:
‘At its core, sexual harassment is concerned with the exercise of power and in the main reflects the power relations that exist both in society generally and specifically within a particular workplace. While economic power may underlie many instances of harassment, a sexually hostile working environment is often “… less about the abuse of real economic power and more about the perceived societal power of men over women. This type of power abuse often is exerted by a (typically male) co-worker and not necessarily a supervisor”.
And:
‘By its nature such harassment creates an offensive and very often intimidating work environment that undermines the dignity, privacy and integrity of the victim and creates a barrier to substantive equality in the workplace. It is for this reason that this Court has characterised it as “the most heinous misconduct that plagues the workplace”.’[9]”
“32] Turning to the appellant’s first ground for appeal, he submits that the Labour Court ought to have concluded that SARB failed to discharge its burden to establish, on a balance of probabilities, that the appellant committed the offences for which he was dismissed. In particular, the appellant submits that the arbitrator drew inferences from the evidence that had the effect of shifting the burden of proof to the appellant. In support of this submission, the appellant submits that the arbitrator drew an inference from the body of evidence that is inconsistent with all the proved facts. In this regard, counsel relied on South African Post Office v De Lacy and Another[(2009) (5) SA 255 (SCA); [2009] 3 All SA 437 (SCA).] in which the Court held that when a court draws an inference, what is required is an evaluation of all the evidence and not merely selected parts, and that the inference drawn be consistent with all the proved facts.
“
“[38] In regard to the appellant’s contention that the charges represented a conspiracy against him, the arbitrator concluded that there was no evidence as to why a group of junior employees would “gang up against a senior manager to support someone whom it is alleged is evading consequences of poor performance when they themselves had nothing to gain from I”’.
“
“[41] The appellant’s submission that the arbitrator ought to have regarded the delay as a factor militating against the probability of the complainant’s version ignores not only the appellant’s concession under cross-examination that it was difficult for women to come forward and report sexual harassment, but also the nature and effect of power dynamics in the workplace. In the comprehensive judgment by Tlhotlhalemaje J in Rustenburg Platinum Mines Limited v UASA obo Pietersen and Others[[2018] ZALCJHB 72; (2018) 39 ILJ 1330 (LC).], the Labour Court said the following about delays in reporting incidents of sexual harassment:
‘[50] Common sense however, and a bit of appreciation of the human mind dictates that one must look deeper and objectively into the reasons incidents of sexual harassment are not immediately reported…
[51] In most cases, however, it might take ages for the complainant to finally muster the strength and courage to report the incidents. This could be for a variety of reasons including but not limited to:
(a) Being ‘frozen’, and disbelieving what they are experiencing, and not having the human tools to respond immediately. The state of paralysis may be accompanied by guilt, confusion, self-anger, self-blame, shame, victimhood, unusual calm, being distraught and incapable of expression, withdrawal, helplessness, or outright terror. (The ‘paralysis mode’ syndrome).
(b) Many fear a backlash if they complain, especially where the incident took place in a power/subordinate relationship…
(c) There is a fear of causing a fossil disharmony in the workplace, with allegations that may not be taken seriously or believed, especially in the absence of corroborating evidence. (Most incidents of sexual harassment take place where there are no witnesses.)
(d) Fear of consequential and negative labelling once an incident is reported…
(e) Feeling pity for the harasser for whatever reason, irrespective of the reprehensible conduct.
(f) Enduring the ordeal with the hope that it will go away, or that it was a once off incidents never to be repeated (the ‘quit or endure’ syndrome), coupled with the carrying of a sense of guilt for not reporting the matter.
(g) The fear of publicity, and/or having to substantiate the allegations in public proceedings under relentless and unsympathetic cross-examination.
[52] the above list of responses is not exhaustive, and will in most instances obviously require of the complainant/experience to attest to them. What is of significance though is that the inability to recall events with specifics, including the timelines within which events or incidents took place, is not an unusual phenomenon in such cases. Courts and Commissioners ought therefore to bear in mind that the fact that the complainant cannot recall specifics does not imply that the incidents did not take place.’”
misconduct: drove his truck into a weighbridge / not reporting incident
JA130/24
Macdonals Transport Upington (Pty) Ltd v National Bargaining Council for Road Freight and Logistic Industry and Others (JA130/24) [2025] ZALAC 53 (30 October 2025)
“[30] As stated earlier, the appellant contends that the commissioner committed an irregularity by failing to appreciate that Mr Koopman had been issued with a final written warning for gross negligence in November 2017. The offence for which he was found guilty in February 2019 was also for negligence, albeit for failing to report damage to company property when he was under a duty to do so. The chairperson of the disciplinary enquiry took into account the earlier final written warning and determined that Mr Koopman should be dismissed.
[31] The appellant argues that this was a case of progressive discipline and that the dismissal of Mr Koopman, who did not deny his conduct, was fair and justified in the circumstances. Both charges arose out of the negligent conduct on the part of Mr Koopman. “
[33] I am satisfied that there is a reasonable possibility that another court may come to a different conclusion to the commissioner as the commissioner appears to have drawn an artificial distinction between the two charges, both of which have their genesis in acts of negligence by the employee.
misconduct: alcohol
C160/2024
Chill Beverages International (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C160/2024) [2025] ZALCJHB 298; [2025] 11 BLLR 1203 (LC) (14 July 2025)
“AI previous cases summary: 1. Zero-Tolerance Policies:
Air Products SA (Pty) Ltd v Matee and Others (2021): Upheld the validity of zero-tolerance policies in hazardous environments.
However, the court in the current case noted that Chill Beverages failed to prove that the working environment was sufficiently dangerous to justify strict enforcement of the policy.
Shoprite Checkers (Pty) Ltd v TOKISO and Others (2015): Highlighted that zero-tolerance policies must be proportional and appropriate to the offense.
The Labour Court in this case emphasized that fairness cannot be overridden by rigid policies.
2. Alcohol in Bloodstream vs Intoxication:
Samancor Chrome Ltd v Willemse and Others (2023): Distinguished between alcohol presence in the bloodstream and actual intoxication. ([20]…Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others (Samancor) [2] where it was established that numerous factors can lead to a positive breathalyser test result, such as yeast in food or even not eating for several hours.)
Similarly, the court here found no evidence of intoxication or impairment in Mr. Tsamse’s case.
Imperial Dedicated Contracts (Pty) Ltd v Mpshe and Others (2021): Addressed the issue of alcohol in the bloodstream due to medication.
The court ruled that dismissal was unfair when there was no impairment, aligning with the findings in this case.
3. Proportionality and Contextual Fairness:
Tanker Services (Pty) Ltd v Magudulela (1997): Established that impairment must be demonstrated for dismissal to be fair.
In this case, the court found no evidence of impairment, supporting the decision to reinstate the employee.
NUMSA obo Cloete v Trentyre (Pty) Ltd and Others (2016): Reinforced that dismissal is not always warranted for alcohol-related infractions, especially when proportionality and fairness are considered.
This principle was applied in the current case.
4. Holistic Assessment:
Builders Trade Depot v CCMA and Others (2012): Outlined factors to consider in dismissal cases, such as the employee’s role, disciplinary record, and harm caused by the misconduct. The court in this case followed these guidelines, noting Mr. Tsamse’s clean record and lack of intoxication.”
Zero tolerance policy – Employee unknowingly consumed alcohol through cough mixture – Displayed no signs of impairment – Unblemished six-year service record – Dismissal found disproportionate to offense – Policy violations must be weighed against contextual fairness – Inadvertent breach and lack of intoxication – Approach aligned with required holistic assessment – Proper evaluation of proportionality and fairness – No misdirection – Application dismissed.
misconduct: incite employees to withhold labour, ross insolence for not allowing a senior manager to speak during a meeting
JR1633/21
Idwala Holdings (Pty) Ltd v National Union of Mineworkers and Others (JR1633/21) [2025] ZALCJHB 307; [2025] 10 BLLR 1060 (LC) (15 July 2025)
[38] Given the evidence of Mr Mahne and his uncontested lack of knowledge of the applicant’s operations, it would not have been possible for him to have conveyed the detailed information he had to the second respondent. There was accordingly no basis upon which the Commissioner could have rejected this evidence.
misconduct: dishonesty
JR604/24
Govan Mbeki Local Municipality v MATUSA obo Nkosi and Others (JR604/24) [2025] ZALCJHB 315 (15 July 2025)
“[59]…In G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. & others[(2017) 38 ILJ 881 (LAC) at para 26.], it was held that an:
‘employment relationship by its nature obliges an employee to act honestly, in good faith and to protect the interests of the employer. The high premium placed on honesty in the workplace has led our courts repeatedly to find that the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely. Dismissal for dishonest conduct has been found to be fair where continued employment is intolerable and dismissal is “a sensible operational response to risk management”.’”
[62] In Humphries & Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others[(1991) 12 ILJ 1032 (LAC).], the LAC held that the employment relationship is one of trust, mutual confidence and respect and that this is the very essence of a master-servant relationship. In the absence of facts that this relationship was not detrimentally affected by the first respondent, it would be irrational to compel the applicant to continue with the employment relationship.
“[63]… The LAC in the matter of De Beers Consolidated Mines v CCMA[ [2000] 9 BLLR 995 (LAC) at para 22.] held in respect of a dismissal:
‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in a particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’
“
misconduct: unauthorized use of a company vehicle and providing false or misleading information about the time of a hijacking incident.
JR1558/2022
Gibela Rail Transport Consortium Rf Pty (Ltd) v NUMSA obo Dube and Others (JR1558/2022) [2025] ZALCJHB 301 (28 July 2025)
“42. On the Applicant’s return to work, he must be issued with a final written warning for unauthorised use of a vehicle, valid for twelve months from the date it is issued.”
“In this case, it is not self-evident that Dube’s failure to obtain authorisation for taking the vehicle home was the type of misconduct warranting dismissal for a first offence. There are cases of employees dismissed for this type of offence[8], but I have not been able to find any in which it was presumed that unauthorised use of a vehicle was conduct, which by its inherent nature was so serious, that it warranted dismissal in the absence of a prior warning. In all instances, the outcome turned on the specific circumstances of the misconduct in question.
“
“Footnote[8]: Examples of dismissal for similar misconduct are: Nemukhovhani v General Public Service Sector Bargaining Council and Others (JR80/2021) [2023] ZALCJHB 88 (23 March 2023) in which the employee was dismissed after being found guilty of unauthorised use of a vehicle on 14 occasions over a few months, a sanction the Labour Court upheld on review; Sanparks v Commission for Conciliation Mediation and Arbitration and Others (C 918/11) [2013] ZALCCT 23 (24 July 2013) in which the employee disobeyed instructions not to use the employer’s vehicles but did so on three occasions. The arbitrator’s decision the dismissal was unfair was upheld on the basis that the arbitrator had considered relevant factors in arriving at his decision. See also Maphai v South African Forestry SOC Ltd and Others (JR 1021 / 19) [2022] ZALCJHB 293 (7 October 2022), a case in which the employee had used the employer’s vehicle to travel 650 km without permission, disputed his guilt and was not contrite. The court dismissed the employee’s attempt to review the award upholding his dismissal.
“
misconduct: insubordination
JR380/24
Rakgogo v South African Local Government Bargaining Council (SALGBC) and Others (JR380/24) [2025] ZALCJHB 335 (31 July 2025)
[57] In TMT Services and Supplies (Pty) Ltd v CCMA and Others[[2019] 2 BLLR 142 (LAC).] the LAC clarified the issue of when dismissal would be appropriate for acts of insubordination. The LAC held that the employer’s managerial prerogative to issue instructions to its employees is a principle that is protected by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees. The LAC further held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee and that it is intolerable that an employer is forced to engage in negotiations regarding day-to-day organisational arrangements with employees. The LAC stated that the effect of the employee’s refusal to attend the meeting was to undermine the working relationship with her manager. The LAC upheld the appeal and confirmed the Commissioner’s finding that dismissal was fair.
[58] In this instance, the evidence proved that the Applicant deliberately and intentionally failed or refuse to carry out the instruction in writing twice and she also continued to sign the attendance registers at her old workplace, and despite the two letters written with the transfer instruction, she persisted with her refusal. This misconduct constituted a wilful, deliberate and persistent of the most senior manager’s instruction by the Applicant and it makes it a serious offence under the circumstances because it undermines the Respondent’s authority.
misconduct: gross dereliction of duty: left a Gate Release Booklet unsecured, which was later used in an attempted theft.
JR1233/21
Assmang (Pty) Ltd t/a Black Rock Mine v Moyo and Others (JR1233/21) [2025] ZALCJHB 359 (13 August 2025)
[26] In light of those facts, the Court is mindful of the exposition of Justice Prinsloo in National Union of Metalworkers of SA & another v Commission for Conciliation, Mediation & Arbitration & others[(2023) 44 ILJ 1575 (LC); [2023] JOL 60529 (LC).] (the Lumka case): “an employee is obliged to act to protect the interests of the employer and when the employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as an employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests (which includes property) of the employer. In such a case, dismissal becomes an operational imperative and way of managing risk”.[13]
27] Mr Moyo was charged with breaching the Rule, which was alleged to constitute a gross dereliction of duty. The concept of dereliction of duty “implies deliberate or wilful action on the part of the employee”,[15] not mere negligence.
[28] In this case, there was a deliberate decision to leave the Gate Release Booklet in an unsecured locker, thereby exposing Assmang to the serious risk that items could be removed from its operations by persons unauthorised to do so. Although the evaluation of the evidence does not suggest Mr Moyo was actuated by malice, the circumstances in which the Rule was breached imply that Mr Moyo was at least grossly negligent: it was an instance of “conscious risk-taking, complete obtuseness of mind or… a total failure to take care”, and “departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme”, as described by the Supreme Court of Appeal in Transnet Ltd t/a Portnet v The Owners of the Mv “Stella Tingas” and another.[[2003] 1 All SA 286 (SCA); 2003 (2) SA 473 (SCA) at 290-1.]
misconduct: debarment
JR 22/23
Anyadiegwu v Commission For Conciliation Mediation and Arbitration and Others (JR 22/23) [2025] ZALCJHB 373 (18 August 2025)
“[51] Lastly, the Applicant contends that the Commissioner committed a reviewable irregularity in failing to attach weight to the fact that his manager approved the ROAs, which, according to him, indicates that the ROA complied with the Bank’s policies. This contention is patently without merit. Section 9 of the Code placed an obligation on the Applicant to render financial services honestly and fairly. On the objective facts, there was no evidence that the Manager was involved in rendering financial services to Padiri. Further in this regard, the Applicant’s manager would not have known that the funds used were disinvestments from the existing investments. The Applicant was deceitful in his description of the source of funds in the ROAs. In South African Society of Bank Officials – The Finance Union and Another v Standard Bank Ltd and Others[ [2022] 10 BLLR 934 (LAC) at para 17.] (SASBO), the LAC described dishonesty in the following terms:
‘Dishonesty as an aspect of misconduct is a generic term embracing all forms of conduct involving deception. This Court in Nedcor Bank Ltd v Frank & Others defined dishonesty as a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulent. Deceitfulness can manifest itself in various forms, which includes providing false information, non-disclosure of information, pilfering, theft and fraud. The fiduciary duty owed by an employee to the employer generally renders any dishonest conduct a material breach of the employment relationship, thereby justifying summary dismissal…’ (footnote omitted)”
“[52] I am of the view that the Applicant’s conduct was unethical, deceitful and constituted a material breach of Section 3 of the Code, which obliged him to render financial services honestly, fairly, with due skill, care, and diligence, and in the interests of clients and the integrity of the financial services industry. Self-evidently, the Applicant elevated his personal interests above the interests of the client and the integrity of the financial services industry. On the objective facts, the Applicant demonstrated a willingness to use deceptive and unethical methods to bypass the provisions of the Bank’s NFP Business Handbook designed to protect the public for his personal enrichment. This conduct, in my view, constitutes an egregious form of dishonesty.
“
“55] In Mlombo v Standard Bank Financial Consultancy and Another[(FSP30/2019 [2019] ZAFST 4 (23 December 2019) at para 52.], the Financial Service Tribunal, dealing with a debarment of a Representative for dishonesty-related conduct, made the following observations:
‘Barring is not akin to a sentence. As long ago as 1778, Lord Mansfield stated in Ex parte Brounsall Cowp 829 that debarment (in that case of a solicitor) is not a punishment and that the question is rather whether the person concerned in the light of the conduct would be free from suspicion. In other words, debarring is for protecting the public and is not punitive.’ (footnote omitted)”
misconduct: caused an accident while driving a 34-ton truck, overtaking recklessly, crossing double white barrier lines, and failing to wear a seatbelt.
JR2060/22
Namibia Logistics v Maduna and Others (JR2060/22) [2025] ZALCJHB 364 (19 August 2025)
“[30] The Labour Appeal Court[Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Lebogate (2015) 36 ILJ 968 (LAC); See also Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC) ] has emphasised that an arbitration award will be considered to be reasonable when there is a material connection between the evidence and the result. Conversely, an arbitration award will be deemed to be unreasonable if it is entirely disconnected from the evidence, unsupported by any evidence and involves speculation by the arbitrator.
“
[51] All of the evidence that served before the arbitrator spoke to the magnitude of Mr Ncoyini’s misconduct, that he breached a workplace rule, and the rules of the road with calamitous consequences, including endangering fellow road users. [Algoa Bus Co (Pty) Ltd v Tirisano Transport & Services Workers Union on behalf Of Mzawi & others (2025) 46 ILJ 89 (LAC).]
Misconduct: legal principle on common purpose
JR1598/22
Southern African Clothing and Textile Workers Union v Plusnet Geotex and Others (JR1598/22) [2025] ZALCJHB 380 (28 August 2025)
“[28] Regarding the issue of a guilty finding for those who claimed they were not involved at all, this Court first looks at the established legal principle on common purpose, as per Mgedezi[[1989] 2 All SA 13 (A). See also NUMSA obo Aubrey Dhludhlu and 147 Others 2023 (1) SA 338 (CC).], as followed by the Labour Appeal Court in AMCU and others v KPMM Roads and Earthworks,[[2019] 4 BLLR 340 (LAC).] which is that:
“…In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of [the crime to be committed]….Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of [the crime] by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea [criminal intent]…””
misconduct: sing petty cash to purchase chocolates for personal consumption without authorization and failing to disclose the purchases to management
JR1014/18
JDG (Pty) Ltd ta HI FI Corporation v Shear and Others (JR1014/18) [2025] ZALCJHB 402 (29 August 2025)
[14] This court has no hesitation whatsoever to find that the act of using petty cash money, without permission, constitutes an act of dishonesty. It is immaterial whether the third respondent was charged with misuse of petty cash and not with dishonesty, as the use of petty cash without permission is an act of dishonesty. The third respondent was not charged with failure to comply with policies or procedures but with using petty cash monies. The first respondent’s finding therefore is a finding that a reasonable decision-maker could not reach.
“[20] The Labour Appeal Court in Nedcor Bank Ltd v Frank & Others[(DA4/01) [2002] ZALAC 11; [2002] 7 BLLR 600 (LAC); (2002) 23 ILJ 1243 (LAC) (8 May 2002).] held that dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently[7]. The court referred to the Canadian case of Lynch & Co v United States Fidelity & Fidelity & Guaranty Co where the following was said:
“Dishonest is normally used to describe an act where there has been some intent to deceive to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage of the dictionary meaning.” “
“[22] The Labour Appeal Court in Anglo American Farms t/a Boschendal Restaurant v Komjwayo[(1992) 13 ILJ 573 (LAC)] the following was said:
“It seems to me that the relationship between such an employer and such an employee is of such a nature that, for it to be healthy, the employer must, of necessity, be confident that he can trust the employee not to steal his stock-in-trade. If that confidence is destroyed or substantially diminished by the realisation that the employee is a thief, the continuation of their relationship can be expected to become intolerable, at least for the employer.””
“[24]..In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[(JA 08/2004) [2008] ZALAC 9; [2008] 9 BLLR 838 (LAC); (2008) 29 ILJ 2581 (LAC) (20 June 2008).] the Labour Appeal Court accepted that, despite the employee having a clean disciplinary record and having worked for the employer for nine years, the acts of dishonesty led to the trust relationship having broken down and the dismissal had been fair. This court has no hesitation in finding that, because of the third respondent’s acts of dishonesty, the trust relationship had broken down completely, as per the unchallenged evidence of Mr. Gaza.
“
misconduct: supervisor has the duty to oversee security(gross dereliction of duties)
JR58/24
Brakfontein Mine v Mkwanazi and Others (JR58/24) [2025] ZALCJHB 387 (3 September 2025)
“[18] Plainly, the Commissioner failed to consider all relevant evidence. Not only that, his evaluation was flawed by legal error, as he imported a standard of proof for demonstrating gross dereliction of duty that implied Ms Mkwanazi had knowledge of theft occurring before concluding she was not grossly negligent in failing to notice that six unauthorized loads of coal left Brakfontein’s premises in question. When a supervisor has the duty to oversee security, a lack of knowledge about a security breach cannot be used as an excuse; the very fact that someone with such duties does not notice what is happening and fails to question it should be enough to establish that they have grossly failed in their responsibilities. As the LAC explained in LAC in National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section),[8] albeit in the context of consistency:
‘As regards the dereliction of duties by his subordinates, if any acts of misconduct were to be proven against any particular individual, it remains plain that they had no managerial role and it is illogical to draw a comparison as contemplated by the factor of inconsistency. Moreover, it would be a paradox if the appellant could legitimately invoke the failure of the very subordinates he was accountable to manage effectively to exonerate or mitigate his managerial neglect by managing them ineffectively.’ (own emphasis)
‘…Overall, the Arbitrator failed to appreciate that gross negligence or gross dereliction of duties or a material breach of a fiduciary duty will, in appropriate circumstances, be sufficient to destroy the trust and confidence which forms the bedrock of the employment relationship, particularly where an employer is dealing with a senior employee, or one who is placed in a particular position of trust, but who does not demonstrate remorse…’[9]
“
incompatibility
JR694/22
Department of Science and Innovation v General Public Service Sectoral Bargaining Council and Others (JR694/22) [2025] ZALCJHB 436 (3 September 2025)
[54] The submission is a fundamental misconception of the principles of incompatibility and misconduct. As a species of incapacity, incompatibility must not be conflated with misconduct, which involves discrete allegations that could lead to a breakdown of a continued working relationship. It would be absurd for employers to raise discrete acts of misconduct without charging the employee for misconduct under the guise of incompatibility. Where the employee committed what the employer and the line manager consider to be misconduct, in this case, insolence or insubordination, it is the duty of the employer to charge the employee and prove the allegations. Breakdown of a trust relationship as a result of misconduct should never be conflated with incompatibility, which is the inability to maintain an appropriate standard of relationship with not only his or her immediate supervisor, but also peers, subordinates, and other superiors, as reasonably required by the employer.
misconduct: contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious).
JR1169/22
Aveng Africa (Pty) Ltd v Burger and Others (JR1169/22) [2025] ZALCJHB 403 (5 September 2025)
[25] A mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot, on its own, constitute insubordination, which by its very nature requires disobedience or an outright challenge to authority. Insubordination can manifest itself in the refusal to obey a reasonable and lawful command or in the challenge (or resistance) to or defiance of the authority of the employer. It is, of course, required that insubordination must be deliberate (wilful) and serious. This is not to say contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course, that it is wilful and serious). One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are not the same offence.
[27] Thus, unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.[Commercial Catering & Allied Workers Union of SA & Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) (Wooltru) at 314H-J.]
“[29] This is apparent from what the LAC said in Palluci Home, when it said the following:
‘Although the respondent’s conduct can be described as insolent, impudent, disrespectful, and rude, it certainly does not constitute insubordination which in law requires a persistent, wilful and serious challenge to, or defiance of the employer’s authority. Nor, in my view can the first respondent’s conduct towards Lambrecht be described, on the evidence, as a “calculated challenge” to the employer’s authority, since it was neither deliberate nor intentional. The first respondent had been provoked by Lambrecht in two respects: firstly, by the unlawful deduction of monies from her salary which it is common cause was the basis of the impasse, and secondly, by the condescending manner in which Lambrecht had turned his back to her whilst she attempted to discuss the issue of the deduction with him. This resulted in nothing more than, at best, an isolated knee jerk in the heat of the moment by the first respondent, who had been provoked by her employer. It is clear from the evidence that she did not intend to challenge or defy Lambrecht’s authority, but in her anger at the deduction coupled with Lambrecht’s refusal to discuss the issue with her by inter alia condescendingly turning his back to her, she reacted precipitously by demanding, in a raised voice, that he should not turn his back to her while she was discussing the issue of the deduction with him. Whilst the first respondent’s conduct was manifestly insolent, it cannot be said to be a serious, persistent and deliberate challenge to the employer’s authority, on which to found a charge of insubordination or gross insubordination.’[(2015) 36 ILJ 1511 (LAC).]”
Employee’s conduct was disrespectful but did not amount to wilful and serious challenge to authority – Culture of meetings encouraged open criticism – Conduct was consistent with past tolerated behaviour – Actions were not malicious – Stemmed from legitimate workplace concerns – Application dismissed.
misconduct: alcohol, zero tolerance
JR271/2023
Msitshana v Commission for Conciliation Mediation Arbitration and Others (JR271/2023) [2025] ZALCJHB 424 (9 September 2025)
“[63] In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others[21], the LAC outlined principles applicable to the zero-tolerance policy as follows:
‘[17] It is also necessary to make some further remarks as regards dismissal for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach.
[18] But the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners. A zero-tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin…
…
[22] Even assuming that the appellant was pursuing a zero-tolerance policy, it was not one that is appropriate for an infringement of this rule without further evidence from appellant for the justification of such an inflexible policy. In any event, the commissioner is required to consider whether the circumstances of the case warrant dismissal. If it does not, then irrespective of the company’s policy, the commissioner is at large to set the dismissal aside and replace it with an appropriate sanction.’
“
Zero tolerance policy – Alleged consumption of flu medication – Alcohol policy was valid and had been consistently applied – Employee aware of rule – Previously received a final written warning for similar misconduct – Acceptance of zero-tolerance approach was appropriate given safety-sensitive nature of mining operations – Dismissal was an appropriate sanction for contravention – Substantively fair dismissal – Application dismissed.
misconduct: sexual harassment: not reported the incident immediately
JR 1525/22
Nedbank Limited v Olwage and Others (JR 1525/22) [2025] ZALCJHB 422 (12 September 2025)
[73] The arbitrator also took issue with Ms W[…] having not reported the incident immediately because she had to gather courage. The arbitrator failed to appreciate that in some instances the recipient may be unable to immediately express their revulsion, that it is not uncommon for recipients to process what has occurred and to act on the conduct in question at a later stage. [U v Commission for Conciliation, Mediation & Arbitration & Others (2021) 42 ILJ 1778 (LC).]
Conduct constituted sexual harassment – Employer could not reasonably be expected to continue employment relationship – Dismissal substantively fair.
misconduct: not all offences of dishonesty warrant a sanction of dismissal.
JR1452/22
Sibanye Stillwater Ltd t-a Sibanye Gold Ltd v Commission for Conciliation Mediation Arbitration and Others (JR1452/22) [2025] ZALCJHB 431 (19 September 2025)
[16] Before this Court is the question of whether the substitution of the dismissal sanction with a final written warning is a decision falling within the bands of reasonableness and/or whether it passes the review test, as Ms Ngwenya for the applicant argued. The decision falls to be reviewed and set aside as the second respondent placed more emphasis on mitigating factors than on aggravating factors. Dishonesty cannot be minimised to attract a lesser sanction than dismissal. She relied on Autozone v Dispute Resolution Centre of Motor Industry & Others[(2019) 40 ILJ 1501 (LAC)] where the LAC found it not to be mandatory for the employer to lead evidence on the breakdown of the trust relationship, where it can be drawn from the dishonest conduct of the employee, ‘who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible’[5]. A sanction of dismissal in circumstances of dishonesty is viewed as an appropriate response to operational risk.[See De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others, (2000) 21 ILJ 1051 (LAC) at para 26 where it is said: ‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.’]
17] The third respondent’s position, as argued by Mr Makalima, is that not all offences of dishonesty warrant a sanction of dismissal. He subscribed to a view expressed in ABSA Bank Ltd v Naidu[[2015] 1 BLLR 1 (LAC) at para 52.] that there are varying degrees of dishonesty which are determinable based on the facts of each case. The second respondent committed no irregularity, even on the award of reinstatement with full backpay, which is a primary relief.
[1]…The second respondent agreed with the applicant that the third respondent was indeed guilty of dishonesty. The second respondent, however, found the sanction of dismissal to be harsh. He substituted it with a final written warning valid for 12 months and ordered the applicant to reinstate the third respondent retrospectively to the date of dismissal with full backpay.
[6] According to the applicant, the third respondent was not required to report for duty on 23 December 2017; however, he did and submitted a claim for overtime payment for the day and for the period he did not render any service, which is between 06h00 and 07h36. What the applicant found to be extremely dishonest about the third respondent’s conduct was to ask his colleague, Ms Nqini, to assist him with clocking manually. This request was made around 12h00.
“AI summary: The court upheld the arbitrator’s decision to substitute dismissal with a final written warning, considering mitigating factors such as the employee’s 31 years of service, clean record, and the minor nature of the dishonesty.
However, the court found the award of full backpay unreasonable due to delays caused by the third respondent. It reduced the backpay to six months.”
misconduct: Threatening WhatsApp message
JR1997/2021
Weir Minerals Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1997/2021) [2025] ZALCJHB 448 (1 October 2025)
Threatening WhatsApp message sent to employees – Condemned reporting misconduct to supervisors and warned that such individuals would be exposed – Absence of remorse and acknowledgment of wrongdoing – Critical to assessing fairness of dismissal – Use of the term “mpimping” was inherently threatening in employment context – Evoked a history of retaliation and intimidation – Message discouraged whistleblowing and undermined workplace discipline – Dismissal substantively fair.
“[15] Furthermore, Ms Kok argued for the employer, it is trite that the acknowledgement of wrongdoing and showing remorse are imperative differential treatment factors in deciding whether progressive discipline is appropriate in the circumstances. In the current matter, the commissioner erred by ignoring the employees’ non-acknowledgement of wrongdoing and lack of remorse in toto and on that basis, her finding is grossly unreasonable.
“
“[34] The Court, in its conclusion above, finds refuge in the following passage from the Labour Court in National Union of Metalworkers of SA & another v Commission for Conciliation, Mediation & Arbitration & others:[(2023) 44 ILJ 1575 (LC); [2022] 3 BLLR 209 (CC) at para 54.]
‘… an employee is obliged to act to protect the interests of the employer and where an employee fails to do so and the failure constitutes serious misconduct, the sanction of dismissal will be fair, as the employer is entitled, as an operational imperative, to rely on its employees to act in good faith and to protect the interests… In such a case, dismissal becomes an operational imperative and way of a managing risk.’”
misconduct: Arrested on suspicion of murder – Released on bail with conditions restricting access to Ermelo but not prohibiting employment elsewhere
JR1133/2023
Transnet Soc Ltd v Transnet Bargaining Council and Others (JR1133/2023) [2025] ZALCJHB 506 (27 October 2025)
[9] The applicant terminated his employment contract with effect from 21 September 2022, based on the fourth respondent’s impossibility to tender his services and perform his duties.
“[20] The fourth respondent had already advised the applicant of the upcoming bail hearing and requested that they await its outcome. Had the employer exercised patience and waited just a few more days, it would have had clarity on the bail conditions and could then have been in a position to make a well-informed, reasonable decision regarding the feasibility of alternative placement.
“
misconduct: immoral, indecent, disgraceful conduct (e.g. sexual harassment)”
JR919/23
First National Bank Division of Firstrand Bank Limited v Ndlazi and Others (JR919/23) [2025] ZALCJHB 516 (5 November 2025)
[16] The wording of the charge, which expressly refers to “immoral, indecent, disgraceful conduct (e.g. sexual harassment)”, clearly indicates that sexual harassment was cited merely as an example of the type of misconduct contemplated — not as the exclusive form of misconduct alleged. The essence of the charge in my view was that the first respondent’s behaviour was improper and unbecoming of a person in a supervisory position within the workplace.[2]
[24] The Commissioner’s reasoning appears to have been unduly influenced by the framing of the issue as one of sexual harassment alone. By doing so, he failed to adequately consider whether the first respondent’s behaviour, even if falling short of sexual harassment, nonetheless violated the broader standards of professionalism and respect expected in the workplace.
misconduct: AI dishonesty
JR1780/2022
Gauteng Department of Roads and Transport v General Public Service and Others (JR1780/2022) [2025] ZALCJHB 567 (28 November 2025)
Misconduct relating to soliciting money from a business license applicant – Employee not admitting misconduct until arbitration proceedings – employed in a position requiring confidence in the incumbent’s integrity – arbitrator inter alia collapsing issue of employees’ capability with her trustworthiness – operationally untenable to retain employee where trust relationship broken)
AutoZone v Dispute Resolution Centre of Motor Industry and Others (2019) 40 ILJ 1501 (LAC): This case emphasizes that dishonest conduct can irreparably damage the trust relationship between employer and employee, making dismissal justified even without evidence of irreparable damage.
“City of Johannesburg v Jacobs N.O.
and Others [2021] 6 BLLR 579 (LC): The court held that dishonesty and misconduct that bring an employer into disrepute can destroy the trust relationship, justifying dismissal.”
Stokwe v MEC: Department of Education, Eastern Cape and Others (2019) 40 ILJ 773 (CC): The Constitutional Court upheld the substantive fairness of a dismissal despite a delay in disciplinary action, emphasizing that the delay does not necessarily mean trust remains intact.
City of Cape Town v SALGBC [2011] 5 BLLR 504 (LC): This case highlights the incompatibility of dishonesty with continued employment in positions requiring integrity.
Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others (2008) 29 ILJ 1180 (LC): The court ruled that dishonesty undermines the trust relationship, and factors like length of service or first-time offenses do not outweigh the severity of misconduct.
Mphigalale v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 1464 (LC): Reinforces the principle that dishonesty or corruption is incompatible with continued employment, regardless of mitigating factors like long service.
misconduct: unauthorised use of a company vehicle by the employee for personal purposes
JR699/23
Europcar South Africa Division of Motors Group Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR699/23) [2025] ZALCJHB 587 (10 December 2025)
“10] The commissioner could not find the employee’s conduct rendered the employment relationship intolerable, and concluded that the dismissal was substantively unfair.
“
** Incapacity
Alcoholism
C644/2009
Transnet Freight Rail v Transnet Bargaining Council and Others
Medical unfit
Insurer rejected claim
Agreed to claim
JR2676/2008
Du Plessis v CCMA and Others
Incapacity/ incompatibility: reasons for the incapacity, the extent of the incapacity, whether it was permanent or temporary, and whether any alternatives to dismissal existed
Incompatibility
CCT 119/20
Booi v Amathole District Municipality and Others (CCT 119/20) [2021] ZACC 36; [2022] 1 BLLR 1 (CC); (2022) 43 ILJ 91 (CC) (19 October 2021)
[41] Thus, intolerability in the working relationship should not be confused with mere incompatibility between the parties. Incompatibility might trigger a different kind of enquiry with different remedies. For instance, an incapacity enquiry may be held to establish whether the incompatibility goes as far as rendering the employee incapable of fulfilling their duties. This is entirely distinct from intolerable relations.
ill-health
JR1855/20
BBD Management Services (Pty) Ltd v Zwane N.O and Others (JR1855/20) [2023] ZALCJHB 7 (13 January 2023)
[34]…The applicant’s second ground of review, items 10 and 11 of the code are inextricably linked and non-compliance with the code renders a dismissal substantively unfair. In other words the substantive aspect of fairly dismissing an employee for incapacity is lacking if there is non-compliance with the code, which provides for certain procedural aspects to be adhered to.
“[35] As stated by Grogan in Dismissal[Dismissal, Third Edition, p 466.] when discussing the code:
“Only once these steps have been taken will dismissal of an injured or sick employee be deemed substantively fair. Although in cases of dismissal for reasons related to the illness or injury of the employee it makes little sense to speak of procedural fairness as an independent requirement, the code indicates the steps an employer should take before dismissing an employee for this reason. The guidelines are set out in item 11.””
difference between: Disability and incapacity
JS 602/19
Gugwini v National Consumer Commissioner (JS 602/19) [2023] ZALCJHB 175 (6 June 2023)
“Disability and incapacity
[91] In Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration and Others[7] (Standard Bank), the Court held that:
‘Disability is not synonymous with incapacity. Under Canadian law adjudicators may not find a person incapable unless they are satisfied that the needs of the person cannot be accommodated except with undue hardship. An employee is incapacitated if the employer cannot accommodate her or if she refuses an offer of reasonable accommodation. Dismissing an employee who is incapacitated in those circumstances is fair but dismissing an employee who is disabled but not incapacitated is unfair.’
[92] Put differently: the LRA recognises three grounds on which a termination of employment might be legitimate; namely the conduct of the employee, the capacity of the employee and the operational requirements of the employer’s business. Dismissing an employee who is incapacitated and who cannot perform his or her normal duties, whose prognoses are poor and whose working conditions cannot be adapted or alternative work is not available and who cannot be accommodated, is not unfair. Dismissing a disabled employee who is not incapacitated, is unfair, and if the main or dominant reason for dismissal is the employee’s disability as opposed to incapacity, such dismissal will be automatically unfair.”
“[94] What is an employer expected to do if an employee is incapacitated? This was considered in Standard Bank, and the Court held that the LRA guidelines for incapacity dismissal contemplate a four-stage enquiry before an employer effect a fair dismissal:[8]
‘[72] Stage one: The employer must enquire into whether or not the employee with a disability is able to perform her work. If the employee is able to work, that is end of the enquiry; the employer must restore her to her former position or one substantially similar to it. Where possible, the job should correspond to the employee’s own choice and take account of her individual suitability for it. If the employee is unable to perform her work and her injuries are long term or permanent, then the next three stages follow.
[73] Stage two: The employer must enquire into extent to which the employee is able to perform her work. This is a factual enquiry to establish the effect that her disability has on her performing her work. The employer may require medical or other expert advice to answer this question.
[74] Stage three: The employer must enquire into the extent to which it can adapt the employee’s work circumstances to accommodate the disability. If it is not possible to adapt the employee’s work circumstances, the employer must enquire into the extent to which it can adapt the employee’s duties. Adapting the employee’s work circumstances takes preference over adapting the employee’s duties because the employer should, as far as possible, reinstate the employee.
[75] During this stage, the employer must consider alternatives short of dismissal. The employer has to take into account relevant factors including ‘the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement’ for the employee.
[76] Stage four: If no adaptation is possible, the employer must enquire if any suitable work is available.’”
[100] The Applicant’s complaint, that instead of trying to assist him in his position as senior researcher, the Respondent offered him alternative positions, has no merit. It was made clear in Standard Bank that if no adaptation is possible, the employer must enquire if any suitable work is available.
[107] Thus: the Applicant has to produce sufficient evidence to raise a credible possibility that his dismissal amounted to differential treatment on the ground of his disability. If that possibility is established, the Respondent needs to produce sufficient evidence to rebut the possibility or to show a fair justification for the differential treatment.
“[110] The Applicant bears the onus to show that he was indeed discriminated against for reasons relating to his disability and he has to show that his dismissal was causally connected to his disability. The Applicant has to discharge these evidentiary burdens.
“
“[111]…The question is this: would the dismissal have occurred if there was no disability?
[112] In my view, the answer to this question is no. This however does not render the dismissal automatically unfair as the next issue to be considered is one of legal causation. The question is whether the Applicant’s disability was the main or dominant cause of his dismissal. The mere fact that the Applicant’s disability was a factual cause is not sufficient to find that there was an adequate causal link between the Applicant’s disability and his dismissal to conclude that his disability was the reason for it.”
employer is entitled to dismiss the employee for prolonged illness
JR 616/18
Epibiz (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 616/18) [2023] ZALCJHB 207 (17 July 2023)
““It should be mentioned that an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. And it may, if it is fair in the circumstances, exercise an election to end the employment relationship.”[Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA) and para 31]
[1] If the employer’s efforts to get the employee to return to work are frustrated by the employee and her representatives, it is found in this case. If incapacity due to ill health justifies dismissal, this is the case in point. In the premise, it stands to reason that the employer is entitled to dismiss the employee for prolonged illness called “Consultation”.”
“[26] In respect of facts, in the arbitration, uncontroverted evidence was presented by the employer that it made various attempts to request the employee to return to work. In the said attempts, it was the employee and her representatives who refused to come to the party and frustrated the employer’s attempts to properly ascertain the real reasons for the employee’s prolonged absence from work. In this regard, the employer, according to documentary and viva voce evidence placed compelling evidence before the arbitrator to demonstrate that it made efforts to comply with Schedule 8(10) of the LRA. However, all the employer’s efforts were frustrated by the employee and her representatives. In Old Mutual Life Assurance Co SA Ltd v Gumbi[[2007] 4 All SA 866 (SCA); [2007] 8 BLLR 699 (SCA); 2007 (5) SA 552 (SCA)], the appeal court had this to say at para 16:
“In our law a contractual condition is deemed to have been fulfilled where a party deliberately frustrates its fulfilment. By analogy this may be the position in a statutory setting.”
“
“[28] From the record, it is apparent that the employee herself could not explain her illness recorded in the medical certificates she obtained from her medical doctor. The treating doctor did not depose to an affidavit to substantiate the nature of illness recorded in the medical certificate. Further, the treating doctor was not called by the employee to give oral evidence in the arbitration proceedings. In any case, it is trite law that a medical certificate or a sick note from a treating medical doctor remains hearsay evidence if the said certificate is not accompanied by an affidavit from the said doctor. This principle was made clear by the appeal court in Old Mutual. In expanding on this principle, the appeal court in Mghobozi v Naidoo and Others[[2006] 3 BLLR 242 (LAC)], the following was said at para 28:
“The absence of affidavits from the doctors means that the court is deprived of any elaboration of the widely and vaguely stated symptoms attributed to the appellant. The nature of the medication and the efficacy thereof is also not explained.””
[2006] 3 BLLR 242 (LAC)
Incapacity and misconduct difference
JR2023/22
Samson v Commission for Conciliation, Mediation and Arbitration and Others (JR2023/22) [2025] ZALCJHB 13 (14 January 2025)
ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO (2013) 34 ILJ 2347 (LC) at para 78
“5] There is a fine line between misconduct related to negligence and poor work performance related to incapacity, but the distinction remains important. The distinction boils down to culpability. As this court has stated, two simple questions should be asked where an employee has failed in his or her duties:
“In my view, the distinction between poor performance and misconduct (negligence) can be established by the asking of two simple questions when it has been established that an employee indeed failed. The first question is ‘Did the employee try but could not?’ and the second question is ‘Could the employee do it, but did not?’ If the first question is answered in the affirmative, then it has to be poor performance, because an employee that honestly (for the want of a better word) seeks to achieve what is expected of him or her but is unable to do so is incapacitated and would not behave wilfully or indifferently or fail to apply the necessary care. If the second question is answered in the affirmative, then it has to be misconduct, as this would be a situation where the employee is fully able to do what is required not to fail, and such failure could therefore only be because of indifference or wilfulness or a failure to take care.”[17] (own emphasis)”
[6] Before taking action, employers must examine the reasons for the non-performance carefully. Unattainable targets, inadequate resources, or unreasonable expectations all align more closely to incapacity than misconduct.
[8] The CCMA has issued Guidelines for cases of dismissal related to poor work performance. The Guidelines requires the employer, where a performance standard has not been met, to consider inter alia whether the employee was aware of the standard, and whether the employee was given a fair opportunity to meet the performance standard.
Distinction between misconduct related to negligence and poor work performance related to incapacity – Employer received unusually large order – Workload of applicant was extreme and her team was significantly reduced – No conclusion was warranted that applicant was negligent or careless in execution of her duties – Final warning declared an unfair labour practice and set aside.
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