Arbitration Awards

January 2012

Gumbe / Electro Inductive Industries

[2012] 1 BALR 1 (MEIBC)

It was the employee’s uncontested version (the employer was absent) that he had been retrenched by the employer together with about 10 other employees. At the time, he had 4 years service. The retrenched employees were told they would be called back if there were other jobs available. Later that month the HR Manager phoned all of these ex-employees and offered them 3 month contracts of employment, commencing the following day. On the same day the HR Manager again phoned the employee and told him not to start work after all because one of the employer’s employee’s had threatened to leave the employ of the employer if the employee was taken back. The other employees commenced work on 20 March 2011.

The issue to be decided was whether or not this action constitutes a dismissal, and if so, whether the dismissal was fair or unfair.

Section 186(1) of the Labour Relations Act 66 of 1995, as amended (“LRA”), gives the statutory definition of a dismissal, and the relevant subsection is:

“Dismissal means that –

(a) an employer has terminated a contract of employment with or without notice”.

It is noteworthy that this clause does not refer to the contract of an employee. It has been argued in some cases that until such time a person takes up an offer of employment, he/she is not an employee and cannot, therefore, be dismissed. In Dismissal, Discrimination & Unfair Labour Practices (Juta 2005) pages 18–19, the author, John Grogan, discusses some judgments that have considered this argument, and in the light of Wyeth SA (Pty) Ltd v Mangele & others [2005] 6 BLLR 523 (LAC) concludes that:

“the termination of a contract of employment by an employer constitutes a dismissal even if the employee has not yet resumed service”.

There is no written offer to the employee – the HR Manager’s offer was given in a telephone conversation. There was, however, an employment contract that came into being when the offer was accepted. The termination of that contract was also executed orally. At page 146 of the abovementioned reference book, Grogan notes that an oral termination of a contract may be recognised as a dismissal:

“Any action which implies the employer regards the contract as over . . . constitutes a termination for purposes of this section, provided that it can be inferred that the employer’s intention was to bring the contract to an end.

The proviso can create problems. An employer may tell an employee in a fit of anger to ‘go home’ (or use some less polite term) without intending to end the contract permanently. Such communications will not amount to dismissals unless the employee concerned can prove that they understood the words to signify an intention on the part of the employer to terminate the contract, and that their subjective belief was reasonable.”

I find that it was reasonable for the employee to interpret the phone call withdrawing the offer of employment as he did, that his services were no longer required.

Hence, I must turn to address the issue of whether or not this dismissal was fair. Schedule 8 of the LRA, section 2(1) states that:

“A dismissal is unfair if it is not effected for a fair reason and in accordance with a fair procedure”.

And in section 2(4) it goes on to state:

“the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.”

The reason given for the termination of the contract was that some other employee had threatened to leave the employer’s employ if the employee were to return to work. I can accept that this threat may have placed the employer in a difficult position. However, the employer allowed one party in a dispute about a matter that was not work related, to dictate to it a cause of action that was unfair to the other party. Even if the employee concerned was not the employee identified by the employee, the fact remains that there was no proof of any work related misconduct, or any poor performance. Considering the process followed, there was no fair procedure in that the employee was given no opportunity at all to respond to any charges or even any concerns that the employer may have had.

The dismissal was found to be substantively and procedurally unfair. The employer is ordered to pay the employee and amount of R16 627,20 (which approximates three months’ salary, the duration of the fixed term contract unfairly denied to him).

Fredericks / Jo Barkett Fashions

[2012] 1 BALR 28 (CCMA)

Ms Alex Barkett, General Manager, testified that it was brought to her attention that the employee was publishing derogatory statements on her Facebook page. She investigated and found that it was true. The remarks were made known to the general public and the implications would have affected 90 employees and key customers which generates the revenue for the company. As the employee did not show any respect to her as the manager and the company itself, she was charged and an independent chairperson conducted the hearing after which the employee was dismissed.

Ms Louise Muir-Bolberg, Human Resources Manager testified that another employee had tipped her; she found the information on Facebook and printed it. A hearing was conducted; the employee was afforded all the rights during the enquiry and elected not to call any witness. It is her evidence that the employee had breached the contract and destroyed the name of the company as well as its reputation. The employee felt that the dismissal was unfair and the company was supposed to use corrective measures other than to dismiss her. Her total circumstances were not considered.

The commissioner held as follows: “The social media interaction is a new concept in the globe and it is growing very fast. After having gone through the comments as per the bundle, it was clear that the employee knew what she was doing and had negatively impacted on the image of the company and its General Manager. As to her claims of her right of privacy being infringed, the Regulation of Interception of Communication Act 70 of 2002 provides that any person may intercept any communication unless the person is intercepting that information or communication for committing an offence. Facebook can be accessed by any person who has an account and it is up to the Facebook user to restrict access to their pages. The employee did not do so, her page was open to the public and anybody would access it. Corrective measures in circumstances of this case would not be a viable decision, her actions were not justifiable and she used the wrong platform to address her grievance, therefore, dismissal was fair. Procedurally, there was no evidence rebutting the employer’s version.”

The commissioner found on a balance of probabilities that the dismissal was substantively fair.

Mahlangu / Footballers For Life (Pty) Ltd

[2012] 1 BALR 46 (CCMA)

Ms Rademeyer, CEO of the employer testified that the employer became an NGO after a sponsor had insisted that it cease operating as a private company. It then had to employ people and discussions were held with the employees regarding the change in terms of the employer’s status. Mahlangu was interviewed for a position in the new entity and was offered a fixed term contract for a 3 month period. He failed to sign the contract and he was not paid his salary at the end of that month. Rademeyer reported the matter at the employer’s Board meeting and it was resolved that the employee should be given until the end of the next month (November) to sign the contract. It was further resolved that if the employee fails to sign the contract, his contract should not be renewed once it expires. Immediately after the meeting, she sent out an e-mail informing the employee of the need to submit the contract. She received no response from the employee. On 26 November she sent out an e-mail to the employee reminding him of her previous requests. She also advised the employee to raise any concerns he could be having with the contract. The employee failed to give a response in spite of her having left a voice message on his cell phone. On 29 November she sent out another e-mail. On 30 November she requested a colleague who was close to the employee to talk to him. On 1 December she notified the employee about the deadline regarding the submission of the contract. She contacted a labour attorney and she was advised that a disciplinary inquiry should be convened against the employee. The employee came to the office on 8 December to collect the notice for the inquiry but failed to attend the inquiry and it continued in his absence. He was found guilty for failure to carry out an instruction and for insubordination. The chairperson recommended a dismissal that was carried out by the employer.

The employee agreed with the bulk of Ms Rademeyer’s testimony. He testified that he made a mistake by not informing her that he could not attend the disciplinary inquiry. He did not sign the contract and he kept working as usual. He, therefore, did not refuse to sign the contract. His dismissal was unfair in that he was denied an opportunity to state his case. The disciplinary inquiry should have been postponed. The commissioner found it “strange that the employee refused to sign the contract after numerous attempts to have him to sign the contract. The employee failed to give reason for his reluctance to sign the contract prior to his dismissal. The employee also failed to advance any reasons for his reluctance to sign the contract at arbitration. I believe that the employee should have engaged the employer if he was not satisfied with some of the clauses in the contract. I believe through the process of engagement, the parties could have sorted out the concerns. The fact that the employee simply ignored the requests from the employer amounted to a failure to carry out a reasonable instruction issued to him.

The fact that the employee also ignored several attempts to have him sign the contract also amounted to an act of insubordination. There is no better way to describe the employee’s conduct in view of the interventions by the employer to have him sign the contract. I do not believe that the employer could have been expected to continue with an employment relationship with the employee when the employee had no regard to its instructions. The employer even withheld the employee’s salary in an attempt to have him discuss the contract. The employee ignored such an attempt and he worked for the employer for almost 2 months without receiving a salary.

The employee was duly notified of the disciplinary inquiry. The employee chose to go to Boksburg and not attend the inquiry at the scheduled time. The employee also failed to notify the employer of reasons that prevented him from attending the inquiry. The fact that he handed the notification to his attorney should not have prevented him from communicating that to the employer. I find that the employer was correct by continuing with the inquiry in the absence of the employee. I find that the dismissal of the employee was in accordance with a fair procedure.”

The dismissal of the employee was found to be procedurally and substantively fair.

Maluleke & others / Cashbuild, Orange Farm

[2012] 1 BALR 50 (CCMA)

Maluleke and 8 other employees were charged with “gross misconduct” in that:

1. (i)“. . . there has been unacceptable stock losses resulting in huge losses to the company for this financial year of R130 000 up until (July–Sept 2010) 1 November 2010 and a further R9 000 on 9 November 2010 on copper only. The losses for the last financial year ending June 2010 was in excess of R532 000.
2. (ii)Such conduct constitutes a breach of your contract of employment as well as the company’s disciplinary rules and regulations”, and were dismissed.

The procedural fairness was not disputed by the employees – the issue to be decided was whether or not the dismissal was substantively fair. The commissioner noted that employees who are involved in collective misconduct or “team misconduct” may sometimes be fairly dismissed. The general rule is that “these dismissals will only be regarded as fair when the employer proves, on a balance of probabilities, that each individual employee was actually involved in the said misconduct. The justification for dismissals which occur as a result of so-called “team misconduct” appears to be the failure of individual employees to ensure that the group of which they were members complied with a rule or performance standard set by their employer. In the present matter, however, there was simply no evidence that any of the employees failed to ensure that they or their colleagues complied with a rule or performance standard, and it is absurd to contend that the employees in casu were guilty of “team misconduct” merely because they were employed in a store which had a shrinkage problem.

In addition to dismissals for “team misconduct”, it is possible for an employee to be fairly dismissed if he/she is guilty of so-called “derivative misconduct”, or if he/she is guilty of misconduct on the basis of common purpose.

“Derivative misconduct” dismissals occurred in the case of Chauke & others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), but, in that case, the evidence showed that the employees knew which of their colleagues were responsible for industrial sabotage, and they refused to disclose this information to the employer. In the present matter, the employer failed to adduce evidence showing that the employees were aware of the identities of their colleagues who were responsible for the shrinkage problem, and the facts of this matter are distinguishable from the facts in the Chauke case.

The doctrine of common purpose allows a person who is not an actual perpetrator to be found guilty because he/she intentionally associated himself/herself with the acts of the actual perpetrator. In the present matter, there was no evidence showing how the shrinkage in question occurred, which means that the employer was unable to identify the culprit/s. In these circumstances, it is obviously not possible to show that the employees associated themselves with the acts of the actual perpetrator/s, and the employees cannot, therefore, be responsible for shrinkage at the store on the basis of the doctrine of common purpose.

Having regard to the aforegoing, and given that there was no evidence linking the employees, directly or indirectly, to the shrinkage problems which occurred in the store, it is plain that the employees were not shown to be guilty of any wrongdoing by virtue of individual culpability, “derivative misconduct”, “team misconduct” or the doctrine of common purpose. The evidence adduced by the employer showed nothing more than that the employees happened to work in a store which was experiencing problems with shrinkage, and I am unable to find any basis for concluding that there was misconduct by the employees. It follows that the employer failed to discharge the onus on it to prove that there was a fair reason for the employees’ dismissals, and the said dismissals were, consequently, substantively unfair. “

Compensation was awarded.

UASA obo Mvelase / First Uranium (Pty) Ltd t/a Ezulwini Mine

[2012] 1 BALR 86 (CCMA)

The employee, a sampler, was dismissed by the employer, a mining company, after testing positive in a random breathalyser test when he reported for duty. He was on a final written warning for reporting for duty with alcohol in his bloodstream eight months earlier. The employee denied that he had been drinking on that particular day, and claimed that he had consumed cough mixture and that he had a problem with alcohol. The employer contended that it had a zero tolerance policy on alcohol related offences, which had been agreed to with the majority union.

The commissioner noted that there was a discrepancy between the allegation, that the employee was “under the influence” of alcohol and the employer’s actual policy and procedure. The evidence was that the employer does not in fact consider whether or not an employee is actually “under the influence” of alcohol. They have an agreed policy with the majority trade union that any reading from the breathalyser test elicits a penalty, and that these are graded according to the value of the reading and the number of offences in a given year. This actual policy was not challenged, except insofar as the minority union denied having been a party to it. The employer’s evidence on zero tolerance and the penalties, and applying this to the employee’s test, was both cogent and consistent, both witnesses corroborating each other. The employee did not deny his reading.

However the employee, despite being assisted by an experienced trade unionist, was not an impressive witness as he attempted to counter the evidence with a string of implausible and mutually inconsistent versions. Many of these versions were not put to the employer’s witnesses, except in the most cursory way.

It was not plausible that the employee was an alcoholic who needed assistance. He did not call any of his alleged witnesses to this, he did not produce any medical records supporting this, and he did not put his version about the random and very low frequency of alcohol testing to the employer’s witnesses.

It seemed much more probable that if he had had a problem, it would have shown itself soon after the first instance which led to his final warning, as argued by the employer. His having such a final warning also suggested that he was well aware of the zero tolerance aspect of the policy and hence, his protestations that he was not actually “under the influence” were not relevant as this was not the test applied in practice, however, inaccurately the charge was framed.

If the employee had really drank an awful lot of cough mixture, he would have brought some evidence, even the name and the bottle, to his enquiry to prove this, and it appears that he did not. There was no substantial challenge to the employer’s witnesses’ alleged cough mixture/breathalyser tests, either. Hence, I accept that the more likely version was that this was merely an excuse he thought of later. In his own evidence, he did not even raise this except to say that he had not felt well that day. The decision to dismiss the employee was in accordance with the agreed policy, and accordingly fair. The application was dismissed.