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The real reason for misconduct dismissals
THE REAL REASON FOR MISCONDUCT DISMISSALS Misconduct in the employment environment does not start and end with the employer s Disciplinary Code Yet many employers and employees still insist on treating such a document as an absolute codification of all permissible disciplinary actions in the particular workplace As do a startling number of arbitrators Introduction Employers could be forgiven for believing that a comprehensive Disciplinary Code and Procedure is everything they need for managing discipline in the workplace The more detailed categorised and prescriptive the safer they feel in terms of corporate compliance with labour law requirements Inevitably disciplinary proceedings in such an environment have charge sheets with specific pre formulated alternatives from the Code for managers to choose from i e the closest fit to the actual facts and a matrix of disciplinary penalties corresponding to whatever item the employee is found guilty of Also inevitably the issue of in consistency regularly arises since identically framed charges which have corresponding penalties in terms of the Code should have the same result right It becomes a quagmire of technical points and disputes both the employer and employees their representatives insisting on their interpretation of the letter of the Code and fighting about the formulation of the charges and what had been proved The sort of fight one would be expecting between a prosecutor and defence lawyer in a criminal court I would argue that this is not what is expected in the South African workplace environment today see also https simplebooklet com disciplinarycharges and the courts agree even if some arbitrators still do not Unfortunately it is at the level of arbitration that most misconduct disputes end since few employers have the resources to embark on a lengthy and costly review process As long as some arbitrators therefore still insist on a tick box approach employers will find it difficult to risk moving forward or to convince their employees otherwise It is however necessary for employers and especially employees to understand why regardless of the content of any disciplinary code and technical arguments they may nevertheless be validly and fairly dismissed The employment relationship In law the agreement of a person to work for another person or entity and to be remunerated for such work is governed by various legal disciplines including labour law mostly statutory and the law of contract the common law The application of these legal principles is interpreted by the courts and we are bound to these judgements according to the principles of stare decisis Employers and employees are quick to seek out the letter of a contract a policy or a statute to prove a point but fail to appreciate the common law duties and obligations which automatically apply to the relationship Even if none of the following is mentioned in a written employment contract or statute the respective obligations of the employment relationship nevertheless include with some qualifications 1
The employer agrees to pay the employee for the work performed and gains the right to command the employee as to the manner in which he she carries out his duties The employer is also automatically obliged to treat the employee fairly and to provide a safe working environment The employee agrees to place his her personal services at the disposal of the employer to perform the agreed tasks at a reasonable efficiency as can be expected from the promised capacity and in the given position to further the employer s business interests and to do nothing to harm the interests of the employer to adhere to and respect authority to obey reasonable and valid instructions and to refrain from misconduct Importantly the employment relationship is of a fiduciary nature i e this means that employees owe their employer a duty of good faith and honesty and may not put themselves in a position where their own interests conflict with those of their employer or advantage themselves at the expense of the employer This principle had been confirmed by the Appellate Division as it then was in Council for Scientific and Industrial Research v Fijen 1996 17 ILJ 19 A that the relationship between employer and employee is in essence one of trust and confidence and that at common law conduct clearly inconsistent therewith entitles the innocent party to cancel the agreement and that there is a reciprocal duty on the employee not to act in any manner calculated or likely to destroy or seriously damage the relationship of trust or confidence between the parties See also Threewaterskloof Municipality v South African Local Government Bargaining Council Western Cape Others 2010 31 ILJ 2475 LC and SAPPI Novoboard Pty Ltd v Bolleurs 1998 19 ILJ 784 LAC So there is a degree of subservience in the employment relationship without which employers would not be enabled to fulfil their managerial responsibilities but it is built on fairness equality trust and mutual respect in order to maintain a harmonious working environment The employer is also responsible to run smooth operations deliver quality products or services and in most cases to turn a profit As stated in Schedule 8 to the Labour Relations Act item 1 2 A premium is placed on both employment justice and the efficient operation of business While employees should be protected from arbitrary action employers are entitled to satisfactory conduct and work performance from their employees In order to achieve all of this the employer must maintain certain standards in the workplace and these are generally enforced by way of discipline Standards and rules Schedule 8 item 3 1 requires all employers to adopt disciplinary rules that establish the standard of conduct required of their employees the form and content of which may vary according to the size and nature of the employer s business Also that A n employer s rules must create certainty and consistency in the application of discipline This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood Some rules or standards may be so well established and known that it is not necessary to communicate them Note that the obligation is to communicate the expected standards not an obligation to list tabulate categorise or label possible breaches of these standards linked to pre determined consequences for each type of breach It is simply not possible to reduce to writing every possible manner of breach of all possible rules or standards in a workplace or what disciplinary action these should ideally be met with Disciplinary codes should be drafted not as criminal codes but as rules summing up the conduct reasonably expected of employees in carrying out their obligations towards the employer Note also that some rules or standards may be so well established and known that it is not necessary to communicate them or write them up In the case of Tibbett Britten SA Pty Ltd 2
v Mark others 2005 26 ILJ 940 LC the Labour Court recognised that there are certain standards of ethics which employees do not need to be reminded of and as such do not have to be encompassed in an employer s policies Such would also include the implied duty of good faith and diligence of the employee towards the employer and the obligation to do nothing to damage the trust relationship Any conduct of an employee which goes against this duty whether there is a written rule or not would therefore potentially constitute a breach for which an employee could be disciplined Having said that it is however not acceptable for an employer to directly charge an employee with a breakdown of the trust relationship in the abstract or dismiss the employee on that basis as a subjctive fait accompli This was pointed out by the Labour Court in Steven Motale v The Citizen 1978 Pty Ltd and Others LC 2017 ZALCJHB remarking that it appeared as though the employer had conveniently ignored the fact that what led to the alleged breakdown of trust relationship was the alleged misconduct of the employee and that the employee disputed being guilty of misconduct The actions or omissions of the employee that allegedly led to this breakdown still have to be determined in a fair manner Misconduct Schedule 8 mentions three grounds on which a termination of employment might be legitimate including dismissal for a reason relating to the conduct of the employee Although the LRA does not create an offence labelled misconduct the reason for all conduct related breaches discipline or dismissals would ultimately resort under the misconduct banner Howsoever these might be sub categorised into different species of misconduct by an employer in their disciplinary code insubordination negligence absenteeism assault etc such labels should not create a limited number of criminal style offences to be used as prescribed disciplinary charges The standard of conduct which is really at issue is that of diligence and good faith and any conduct that goes against this could potentially lead to a dismissal for misconduct We have seen examples of this principle in social media and how employees private conduct can have an unintended backlash on the business or reputation of their employers In the South African Social Media Landscape Report 2014 Arthur Goldstuck states that Employees active in social media are becoming brand ambassadors for their respective brands The employer would in such circumstances be entitled to embark on a disciplinary process regardless of the existence of a specific rule or social media policy Furthermore Schedule 8 makes it clear that each case must be determined on its own merits and the courts have repeatedly said and demonstrated the same The label or wording of a categorised offence in a disciplinary code can therefore not pre determine what an appropriate penalty would be in all circumstances of breach of a specific rule Examples Dishonesty and the intention to deceive This is often hotly contested by employees and played down by pleading ignorance or negligence at most to try and avoid dismissal Honesty in the employment context is however part of the employee s duty of good faith and breach thereof does not necessarily require proof of the employee s state of mind but could be contravention of any standard of conduct that could reasonably have been expected of an employee acting in good faith Kidrogen Pty Ltd v CCMA others 2018 ZALCC In Minister of the Department of Correctional Services v Mpiko NO and Others 2018 ZALAC 20 where the employee had been dismissed for misrepresentation non disclosure of information and failure to act in the best interest of her employer much was made about whether the employee had intended to deceive her employer The Labour Appeal Court held that it was unnecessary to 3
make a definitive finding on whether she had acted deceitfully and that the real enquiry was whether dismissal was an appropriate sanction for the particular adverse misrepresentations and the circumstances surrounding it The court pointed out that the employee s conduct and her subsequent persistence in being right all through the proceedings established that she lacked judgement and could not be trusted and relied upon to act appropriately in the best interests of her employer Her stance revealed a notable lack of appreciation of her fiduciary duties and a lack of concern or insight about the possibility that her actions had significant potential to cause her employer reputational and financial prejudice Wording of the charge allegations Unlike in criminal proceedings where it is said that the description of any statutory offence in the words of the law creating the offence or in similar words shall be sufficient a misconduct charge does not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the employer s disciplinary code It would be sufficient that the wording of the alleged misconduct conformed with sufficient clarity so as to be understood by the employee to the substance and import of any one or more of the relevant offences rules Woolworths Pty Ltd v CCMA and others 2011 32 ILJ 2455 LAC In Ndlovu Sefako Makgatho Health Science University SMU 2018 27 CCMA the employee had been dismissed on the basis of negligence not insubordination when he refused to lecture a course in general chemistry The arbitrator held that employees owe a duty of care to their employers and negligence results in a breach of that duty The basis for the employee s culpability is not the act or omission itself but rather the lack of care and or diligence that accompanied the act or omission If the consequences of that single act or omission is sufficiently serious or where the employee holds a position where even a single act of negligence can have devastating consequences dismissal may be justified for a first offence In Xstrata South Africa Proprietary Limited Thorncliffe Mine v NUM obo Mphofelo and Others 2018 ZALCJHB 148 the Labour Court held as follows The totality of the evidence before the commissioner proves that the respondents were dismissed for breaching a valid rule of conduct They were aware of the rule The rule was consistently applied by the applicant and dismissal was appropriate for the breach The fact that the respondents were dismissed for misconduct different from the one with which they were charged is of no moment because the nature of the misconduct they were accused of was made clear at their disciplinary enquiries They were therefore not prejudiced by the difference because they were aware that they were committing misconduct which was punishable by dismissal when they accessed the information and conveyed it to Dreyer They were afforded an opportunity to state their cases before the decision to dismiss them was taken Seniority position of authority It has also been emphasised by the courts that seniority and the position of the employee influences his her fiduciary responsibilities e g the degree of freedom an employee has to make and execute business decisions or the extent to which the employer relies on the employee s expertise and judgement in conducting its business and the extent of the employee s position of trust Generally the more senior the employee the more serious the misconduct and a more severe penalty can be justified for someone in a managerial capacity in comparison to his her subordinate who might have committed the same misconduct Mtshwene v Glencore Operations South Africa Pty Ltd Lion Ferrochrome 2019 3 BLLR 219 LAC Employees trying to hide behind their superiors and not accepting responsibility for their own obligations towards their employer have also been called out by the courts The Labour Court in Massstores Pty Limited trading as Makro v Popela and Others 2018 JOL 40348 LC held that in the context of employment every employee is a custodian of the employer s workplace rules and policies due to their general duty of good faith towards their employers Since this duty requires 4
employees to always act in the best interests of their employer a breach thereof would affect the trust relationship and may justify dismissal in certain circumstances The duty of good faith furthermore places a responsibility on employees to monitor and report non compliance by other employees to their employer Dismissal in this instance was appropriate as the employee had denied responsibility and had not shown any remorse the result being a breakdown in the trust relationship and the employee exposing the employer to operational risk All of these cases and in particular Mpiko supra make it abundantly clear that strict proof of the elements of a formulated offence and applying the corresponding penalty from a disciplinary code is not what disciplinary action and misconduct dismissals in the workplace are about and it is not what Schedule 8 requires There is a definite operational backdrop and inherent common law obligations which go far beyond a list of offences in such a code Similarly the appropriate sanction should be determined for each individual breach with this context in mind The fact that the same wording is used in the formulation of charges against two different employees does not mean that the circumstances of the two incidents are the same and should attract the same sanction Deciding on the appropriate penalty In deciding on a balanced sanction consideration must be given to the infraction offence the circumstances of the employee as well as the interests of the employer and the other employees The seriousness of misconduct in the employment context depends therefore not only on the actions of the employee itself but on the way in which it impacts on the employer s business and its other employees This not only pertains to risk but also to the message an employer sends to its employees regarding misconduct of this nature Many of the factors that should be considered have been pointed out by the courts over the years Oliver v Foschini Group Ltd 1995 8 BLLR 102 IC The circumstances of the employer include o the size of the employer o the position which the employer occupies in the market place and its profile therein o the possible prejudice to the employer o the employer s disciplinary code o the consistency of the employer s actions and o the impact of the misconduct on the relationship between employer and employee and the prejudice suffered Sidumo and another v Rustenburg Platinum Mines Ltd and Others 2007 12 BLLR 1097 CC and Samancor Chrome Ltd Tubatse Ferrochrome v MEIBC 2011 32 ILJ 1057 LAC o the importance of the rule that was breached o the reasons for establishing the rule including its reasonableness o the harm caused by the employee s conduct o the effect of setting a precedent o the employee s service record o the seriousness of the misconduct o the effect of such conduct on the continuation of the employment relationship o the nature of the job o the circumstances of the infringement As regards mitigating factors Grogan Dismissal Juta remarks that an employer is not required to take mitigating factors into account merely because they evoke sympathy but that the test is whether taken individually or cumulatively they serve to indicate that the employee will not repeat the offence Relevant considerations may include o a clean disciplinary record o long service 5
o remorse or whether the employee confessed to his misdemeanour and any other factors that might serve to reduce the moral culpability of the employee o the circumstances of the offence Nevertheless the Labour Appeal Court in De Beers Consolidated Mines Ltd v CCMA Others 2000 9 BLLR 995 LAC declared that mitigation as that term is understood in the criminal law has no real place in employment law and that for example long service does not lessen the gravity of the misconduct or serve to avoid the appropriate sanction for it and that it is not as such mitigatory Conclusion Managers HR practitioners and union officials who start out in an organisation and who are then schooled in discipline by way of institutional practice which is largely procedural should be exposed to the broader legal principles upon which all of this are based in order to appreciate what discipline is really about and break away from the way things have always been done or slavishly following disciplinary codes Disciplinary arbitration training workshops should also not just focus on litigation skills or the procedural side of misconduct proceedings but explain the broader context Commissioners still forcing employers into settlements because the relevant charge had not been spelt out in a matrix like disciplinary code are equally missing the point but although many misconceived arbitration awards have been set aside by the courts with the reasons repeatedly explained this is still happening far too often Mostly however I find that employees themselves have very little understanding or appreciation of the trust relationship and the duties they owe their employer They want to get stuck on technicalities around disciplinary issues and refuse to acknowledge any wrongdoing until the bitter end It becomes especially concerning when as in the Mpiko case above an employee s dogged and singular insistence on being right in the face of overwhelming indications to the contrary reveals an utter lack of judgement unreliability and no chance of a salvageable trust relationship The risk of continued employment becomes glaringly apparent and dismissal an unavoidable result A technical argument that the employer s disciplinary code does not permit dismissal for a first offence in such circumstances will be entirely irrelevant As per the Labour Appeal Court in De Beers Consolidated Mines supra dismissal would be justified if continued employment of the offender will be operationally too risky 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 Judith Griessel ________________________________________________________________________________ www griesselconsulting co za June 2019 6
In Kidrogen Pty Ltd v CCMA others 2018 ZALCC the dispute at the CCMA hinged on whether employees who had been dismissed for dishonesty had had the intention to deceive or whether they had merely been negligent The arbitrator s approach was to require proof of deceitful intent as one would in criminal law and on that basis found the dismissals unfair however this was rejected by the Labour Court for the purposes of labour law Honesty in employment law is an aspect of the employee s duty of good faith towards the employer Breach of this duty can be demonstrated not only by proof of the employee s state of mind but also against the standard of conduct that could reasonably have been expected of an employee acting in good faith such as in this case accepting payments made on behalf of one s employer to which one is not entitled In Woolworths Pty Ltd v CCMA and others 2011 32 ILJ 2455 LAC the arbitrator found that the employer failed to prove dishonest intent when the employee had concealed items of clothing on her person with the excuse that is had been to absorb sweat or that it had been her own property and she felt like putting it there The Labour Appeal court disagreed The most probable inference in the circumstances of this case was that the employee wrongfully concealed the blouse in her breast intending thereby to use it for her own private purpose and thus permanently depriving the appellant of its ownership of the blouse in the manner which was akin to misappropriation or theft or attempt to commit such transgression or misdemeanour Whether or not the employee successfully removed the items from the employer s workplace premises without being detected by security personnel was a matter of no relevance Nothing detracted from the fact that the employee concealed the items in her breast in a manner which clearly constituted an act of concealment of the items This conduct was correctly characterised by the appellant as manifesting a dishonest intent on the part of the employee Unlike in criminal proceedings where it is said that the description of any statutory offence in the words of the law creating the offence or in similar words shall be sufficient the misconduct charge 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 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 In Mtshwene v Glencore Operations South Africa Pty Ltd Lion Ferrochome 2019 3 BLLR 219 LAC the Labour Appeal Court dealt with a claim of inconsistent application of discipline in that his subordinate had not been equally disciplined for the structure that had collapsed under their watch The court held that Mr Mtshwene cannot extricate himself from the substandard workmanship that resulted in collapse of the structure In his own words he was a refractory specialist and had compiled the scope of work that was supposed to be performed by the contractor in that kiln He also admitted knowing what was expected to be done by the contractor He ultimately remained accountable for the work that was performed by the contractor and his subordinate 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 In Ndlovu Sefako Makgatho Health Science University SMU 2018 27 CCMA the employee a lecturer in organic chemistry had been dismissed when he refused to lecture a course in general chemistry claiming that it was a change of his terms and conditions of employment even though he was well able and qualified to teach the course The employer had chosen to charge and dismiss him for negligence and much of the employee s argument was about him having been charged with this instead of insubordination 7
The Commissioner held that discipline of employees falls within the prerogative of the employer who may decide what to charge the employee with but having to prove the allegations they choose to make The two issues before her were whether the employee had breached a workplace rule and if so whether dismissal was an appropriate sanction It is trite law that employees are not only to respect the authority of their employers but also their property and the service that it renders Employees owe a duty of care to their employers and negligence results in a breach of that duty The basis for the employee s culpability is not the act or omission itself but rather the lack of care and or diligence that accompanied the act or omission The test for negligence is whether the reasonable person in the same position would have foreseen the harm resulting from the acts or omissions and would have taken steps to guard against that harm The employee had acknowledged that his primary function was to provide a service to students The issue was accordingly whether the instruction was reasonable having regard not only to the contract of employment but also to the employer s operational requirements When considering whether or not a duty assigned to an employee is one that falls within the boundaries of reasonableness cognisance must be taken of the terms and conditions of the contract of employment the nature of the task to be performed the circumstances in which the allocation was given the employer s operational requirements and the lawfulness of the allocation Teaching general chemistry was not beyond what could reasonably be required of the employee in this case but when instructed to teach that subject he had simply chosen to stay away from the lecture theatre He had accordingly neglected his duties As regards penalty the commissioner held that although progressive discipline should normally apply where a single act or omission presents itself if the consequences of that single act or omission is sufficiently serious or where the employee holds a position where even a single act of negligence can have devastating consequences dismissal may be justified on first offence The courts have been particularly intolerant towards employees who possesses a special skill and who because of their position and experience should have been aware of the expected standard as well as the potential consequences of the smallest departure from this standard and that one failure to perform in accordance with those high standards is enough to justify dismissal see Somyo v Ross Poultry Breeders Pty Ltd 1997 7 BLLR 862 LAC The employee s conduct had a devastating effect on the relationship between the employer and the students and therefore also on the trust relationship between employer and employee In Minister of the Department of Correctional Services v Mpiko NO and Others 2018 ZALAC 20 the employee had been dismissed for misrepresentation non disclosure of information and failure to act in the best interest of her employer Again much was made about whether the employee had intended to deceive her employer and the CCMA found that fraud had not been proven The Labour Appeal Court however had quite a different approach and held It is unnecessary to make a definitive finding on whether Roscher acted deceitfully The appeal can and perhaps may better be determined on the narrower question of whether dismissal is an appropriate sanction for the misrepresentations in question which were undisputedly negligent and not in the best interests of the employer Roscher s 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 judgement 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 8
THE REAL REASON FOR MISCONDUCT DISMISSALS Misconduct in the employment environment does not start and end with the employer s Disciplinary Code Yet many employers and employees still insist on treating such a document as an absolute codification of all permissible disciplinary actions in the particular workplace As do a startling number of arbitrators Introduction Employers could be forgiven for believing that a comprehensive Disciplinary Code and Procedure is everything they need for managing discipline in the workplace The more detailed categorised and prescriptive the safer they feel in terms of corporate compliance with labour law requirements Inevitably disciplinary proceedings in such an environment have charge sheets with specific pre formulated alternatives from the Code for managers to choose from i e the closest fit to the actual facts and a matrix of disciplinary penalties corresponding to whatever item the employee is found guilty of Also inevitably the issue of in consistency regularly arises since identically framed charges which have corresponding penalties in terms of the Code should have the same result right It becomes a quagmire of technical points and disputes both the employer and employees their representatives insisting on their interpretation of the letter of the Code and fighting about the formulation of the charges and what had been proved The sort of fight one would be expecting between a prosecutor and defence lawyer in a criminal court I would argue that this is not what is expected in the South African workplace environment today see also https simplebooklet com disciplinarycharges and the courts agree even if some arbitrators still do not Unfortunately it is at the level of arbitration that most misconduct disputes end since few employers have the resources to embark on a lengthy and costly review process As long as some arbitrators therefore still insist on a tick box approach employers will find it difficult to risk moving forward or to convince their employees otherwise It is however necessary for employers and especially employees to understand why regardless of the content of any disciplinary code and technical arguments they may nevertheless be validly and fairly dismissed The employment relationship In law the agreement of a person to work for another person or entity and to be remunerated for such work is governed by various legal disciplines including labour law mostly statutory and the law of contract the common law The application of these legal principles is interpreted by the courts and we are bound to these judgements according to the principles of stare decisis Employers and employees are quick to seek out the letter of a contract a policy or a statute to prove a point but fail to appreciate the common law duties and obligations which automatically apply to the relationship Even if none of the following is mentioned in a written employment contract or statute the respective obligations of the employment relationship nevertheless include with some qualifications 1
The employer agrees to pay the employee for the work performed and gains the right to command the employee as to the manner in which he she carries out his duties The employer is also automatically obliged to treat the employee fairly and to provide a safe working environment The employee agrees to place his her personal services at the disposal of the employer to perform the agreed tasks at a reasonable efficiency as can be expected from the promised capacity and in the given position to further the employer s business interests and to do nothing to harm the interests of the employer to adhere to and respect authority to obey reasonable and valid instructions and to refrain from misconduct Importantly the employment relationship is of a fiduciary nature i e this means that employees owe their employer a duty of good faith and honesty and may not put themselves in a position where their own interests conflict with those of their employer or advantage themselves at the expense of the employer This principle had been confirmed by the Appellate Division as it then was in Council for Scientific and Industrial Research v Fijen 1996 17 ILJ 19 A that the relationship between employer and employee is in essence one of trust and confidence and that at common law conduct clearly inconsistent therewith entitles the innocent party to cancel the agreement and that there is a reciprocal duty on the employee not to act in any manner calculated or likely to destroy or seriously damage the relationship of trust or confidence between the parties See also Threewaterskloof Municipality v South African Local Government Bargaining Council Western Cape Others 2010 31 ILJ 2475 LC and SAPPI Novoboard Pty Ltd v Bolleurs 1998 19 ILJ 784 LAC So there is a degree of subservience in the employment relationship without which employers would not be enabled to fulfil their managerial responsibilities but it is built on fairness equality trust and mutual respect in order to maintain a harmonious working environment The employer is also responsible to run smooth operations deliver quality products or services and in most cases to turn a profit As stated in Schedule 8 to the Labour Relations Act item 1 2 A premium is placed on both employment justice and the efficient operation of business While employees should be protected from arbitrary action employers are entitled to satisfactory conduct and work performance from their employees In order to achieve all of this the employer must maintain certain standards in the workplace and these are generally enforced by way of discipline Standards and rules Schedule 8 item 3 1 requires all employers to adopt disciplinary rules that establish the standard of conduct required of their employees the form and content of which may vary according to the size and nature of the employer s business Also that A n employer s rules must create certainty and consistency in the application of discipline This requires that the standards of conduct are clear and made available to employees in a manner that is easily understood Some rules or standards may be so well established and known that it is not necessary to communicate them Note that the obligation is to communicate the expected standards not an obligation to list tabulate categorise or label possible breaches of these standards linked to pre determined consequences for each type of breach It is simply not possible to reduce to writing every possible manner of breach of all possible rules or standards in a workplace or what disciplinary action these should ideally be met with Disciplinary codes should be drafted not as criminal codes but as rules summing up the conduct reasonably expected of employees in carrying out their obligations towards the employer Note also that some rules or standards may be so well established and known that it is not necessary to communicate them or write them up In the case of Tibbett Britten SA Pty Ltd 2
make a definitive finding on whether she had acted deceitfully and that the real enquiry was whether dismissal was an appropriate sanction for the particular adverse misrepresentations and the circumstances surrounding it The court pointed out that the employee s conduct and her subsequent persistence in being right all through the proceedings established that she lacked judgement and could not be trusted and relied upon to act appropriately in the best interests of her employer Her stance revealed a notable lack of appreciation of her fiduciary duties and a lack of concern or insight about the possibility that her actions had significant potential to cause her employer reputational and financial prejudice Wording of the charge allegations Unlike in criminal proceedings where it is said that the description of any statutory offence in the words of the law creating the offence or in similar words shall be sufficient a misconduct charge does not necessarily have to be strictly framed in accordance with the wording of the relevant acts of misconduct as listed in the employer s disciplinary code It would be sufficient that the wording of the alleged misconduct conformed with sufficient clarity so as to be understood by the employee to the substance and import of any one or more of the relevant offences rules Woolworths Pty Ltd v CCMA and others 2011 32 ILJ 2455 LAC In Ndlovu Sefako Makgatho Health Science University SMU 2018 27 CCMA the employee had been dismissed on the basis of negligence not insubordination when he refused to lecture a course in general chemistry The arbitrator held that employees owe a duty of care to their employers and negligence results in a breach of that duty The basis for the employee s culpability is not the act or omission itself but rather the lack of care and or diligence that accompanied the act or omission If the consequences of that single act or omission is sufficiently serious or where the employee holds a position where even a single act of negligence can have devastating consequences dismissal may be justified for a first offence In Xstrata South Africa Proprietary Limited Thorncliffe Mine v NUM obo Mphofelo and Others 2018 ZALCJHB 148 the Labour Court held as follows The totality of the evidence before the commissioner proves that the respondents were dismissed for breaching a valid rule of conduct They were aware of the rule The rule was consistently applied by the applicant and dismissal was appropriate for the breach The fact that the respondents were dismissed for misconduct different from the one with which they were charged is of no moment because the nature of the misconduct they were accused of was made clear at their disciplinary enquiries They were therefore not prejudiced by the difference because they were aware that they were committing misconduct which was punishable by dismissal when they accessed the information and conveyed it to Dreyer They were afforded an opportunity to state their cases before the decision to dismiss them was taken Seniority position of authority It has also been emphasised by the courts that seniority and the position of the employee influences his her fiduciary responsibilities e g the degree of freedom an employee has to make and execute business decisions or the extent to which the employer relies on the employee s expertise and judgement in conducting its business and the extent of the employee s position of trust Generally the more senior the employee the more serious the misconduct and a more severe penalty can be justified for someone in a managerial capacity in comparison to his her subordinate who might have committed the same misconduct Mtshwene v Glencore Operations South Africa Pty Ltd Lion Ferrochrome 2019 3 BLLR 219 LAC Employees trying to hide behind their superiors and not accepting responsibility for their own obligations towards their employer have also been called out by the courts The Labour Court in Massstores Pty Limited trading as Makro v Popela and Others 2018 JOL 40348 LC held that in the context of employment every employee is a custodian of the employer s workplace rules and policies due to their general duty of good faith towards their employers Since this duty requires 4
v Mark others 2005 26 ILJ 940 LC the Labour Court recognised that there are certain standards of ethics which employees do not need to be reminded of and as such do not have to be encompassed in an employer s policies Such would also include the implied duty of good faith and diligence of the employee towards the employer and the obligation to do nothing to damage the trust relationship Any conduct of an employee which goes against this duty whether there is a written rule or not would therefore potentially constitute a breach for which an employee could be disciplined Having said that it is however not acceptable for an employer to directly charge an employee with a breakdown of the trust relationship in the abstract or dismiss the employee on that basis as a subjctive fait accompli This was pointed out by the Labour Court in Steven Motale v The Citizen 1978 Pty Ltd and Others LC 2017 ZALCJHB remarking that it appeared as though the employer had conveniently ignored the fact that what led to the alleged breakdown of trust relationship was the alleged misconduct of the employee and that the employee disputed being guilty of misconduct The actions or omissions of the employee that allegedly led to this breakdown still have to be determined in a fair manner Misconduct Schedule 8 mentions three grounds on which a termination of employment might be legitimate including dismissal for a reason relating to the conduct of the employee Although the LRA does not create an offence labelled misconduct the reason for all conduct related breaches discipline or dismissals would ultimately resort under the misconduct banner Howsoever these might be sub categorised into different species of misconduct by an employer in their disciplinary code insubordination negligence absenteeism assault etc such labels should not create a limited number of criminal style offences to be used as prescribed disciplinary charges The standard of conduct which is really at issue is that of diligence and good faith and any conduct that goes against this could potentially lead to a dismissal for misconduct We have seen examples of this principle in social media and how employees private conduct can have an unintended backlash on the business or reputation of their employers In the South African Social Media Landscape Report 2014 Arthur Goldstuck states that Employees active in social media are becoming brand ambassadors for their respective brands The employer would in such circumstances be entitled to embark on a disciplinary process regardless of the existence of a specific rule or social media policy Furthermore Schedule 8 makes it clear that each case must be determined on its own merits and the courts have repeatedly said and demonstrated the same The label or wording of a categorised offence in a disciplinary code can therefore not pre determine what an appropriate penalty would be in all circumstances of breach of a specific rule Examples Dishonesty and the intention to deceive This is often hotly contested by employees and played down by pleading ignorance or negligence at most to try and avoid dismissal Honesty in the employment context is however part of the employee s duty of good faith and breach thereof does not necessarily require proof of the employee s state of mind but could be contravention of any standard of conduct that could reasonably have been expected of an employee acting in good faith Kidrogen Pty Ltd v CCMA others 2018 ZALCC In Minister of the Department of Correctional Services v Mpiko NO and Others 2018 ZALAC 20 where the employee had been dismissed for misrepresentation non disclosure of information and failure to act in the best interest of her employer much was made about whether the employee had intended to deceive her employer The Labour Appeal Court held that it was unnecessary to 3