Although one knows what the case law said, one can’t always immediately recall the decision in which the principle was expressed. These quick quotes may stimulate those memory lapses.
1. A commissioner must decide if the sanction was fair
CASE LAW:
Sidumo v Rustenburg Platinum Mines Limited (Rustenburg Section) & others (2007) 28 ILJ 2405 (CC)
Principle: A commissioner must evaluate the employer’s sanction – not impose his own sanction
The Constitutional court emphasised in Sidumo at para [79] that –
“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.”
2. Distinction between insubordination and gross insubordination
CASE LAW:
Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters and Others, (2013) 34 ILJ 1440 (LAC); [2014] JOL 31995 (LAC).
Principle: Dismissal is appropriate in instances where the employee is guilty of gross insubordination.
The Labour Appeal court restated the distinction between insubordination and gross insubordination at para 31:
“It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and reasonable instruction issued by the employer. It is also well settled that where the insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified.”
3. Dismissal is fair if false claims in CV resulted in employment
CASE LAW:
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others (2017) 38 ILJ 881 (LAC)
Principle: Dismissal is warranted in instances where employees made false claims in their CVs in order to secure a position as such conduct amounts to dishonesty which dishonesty underpins the substantial fairness of the dismissal.
The LAC (per Savage AJA) emphasised that such a dismissal is substantively fair regardless of how long it took the employer to discover that the employee had made false statements when applying for the position:
“[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.”
4. Convene a disciplinary hearing
CASE LAW:
Ngubeni v The National Youth Development Agency and Another (J 2322/13) [2013] ZALCJHB 269 (21 October 2013)
Principle: If the employment contract states that a disciplinary hearing must be held the employee is entitled to that hearing prior to dismissal
The LC (per Van Niekerk) put it thus:
“[15] In my view, the interpretation proffered by Ngubeni must prevail. First, the manifest purpose of clause 10.1 is to stipulate the terms on which Ngubeni’s contract may be terminated by the NYDA when it is alleged that Ngubeni has committed an act of misconduct. The three grounds that form the subject of the clause 10.1 are perhaps best described instances in which the prospect of a termination of employment might arise. On this reading, the employee may be dismissed if after a fair procedure, it is established that the employee is (1) guilty of any misconduct or (2) has committed a breach of material obligation which is incompatible with continued employment or (3) is found guilty of any act that would in law entitle the employer to terminate the contract. The purpose of fair procedure, on this reading, is to establish whether any of these three situations in fact exist.”
And:
“[17] Even if I am wrong in coming to the conclusion that Ngubeni’s contract of employment entitled him a fair procedure before the termination of his employment on grounds of misconduct, the fact remains that the NYDA’s letter to Ngubeni on 27 July offered him a hearing on specific terms. The NYDA could have said, as envisaged by the Code of Good Practice, that Ngubeni be afforded the opportunity to state a case in an informal manner in response to the allegations against him. This is what the Code of Good Practice envisages.
“[18] Having found that clause 10.1 of the employment contract requires the NYDA to afford Ngubeni a fair disciplinary procedure prior to terminating his contract, it remains to consider whether the NYDA’s conduct amounted to a breach of that clause. This the NYDA cannot seriously contest – its case is that Ngubeni is not entitled to a hearing. As I have indicated, it is not disputed that Ngubeni’s contract was terminated before he presented his version to the chair of the hearing, either by giving evidence himself or by calling witnesses. All the board had before it, assuming it was furnished with the full record of the incomplete hearing, was its own version. It is obvious that there was no fair procedure afforded Ngubeni before the termination of his contract, and self-evident that the NYDA acted in breach of clause 10.2.”
5. Caution employee before dismissing while on probation
CASE LAW:
Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016)
Principle: The Code of Good Practice: Dismissal provides in Clause 8 that employers must follow the steps as stated in the Code when an employee is on probation in order to ensure that the termination of the contract during probation is fair.
After the employer terminated the services of the employee for repeated late coming without having subjected the employee to progressive discipline during probation, the Labour court (per Molahlehi J) found that the employee’s dismissal was unfair:
“[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.”
