Arbitration Awards – June 2011

Advocate Nicolene Erasmus

Onus of proof – dismissal or resignation?
Geldenhuys / Agon Marine [2011] 6 BALR 579 (MEIBC) According to the employee he was dismissed after he had repeatedly asked for his salary after he had been paid short. The employer’s version was that on the date of the alleged dismissal, the employee was reading the newspaper instead of working. When the employer confronted him, the employee complained about having been paid too little money on the weekend. He said he “can’t go on like this”, that he saw no reason to stay on and then walked out.
Referring to section 192 of the LRA, the commissioner noted that the employee bore the onus of proving that he had been dismissed. “The civil standard of proof on a balance of probabilities applies. Thus, I must be satisfied that it is more probable than not that the applicant was dismissed. If the probabilities are evenly balanced, then the applicant has not discharged the onus to show the existence of his dismissal”. The commissioner pointed out that the versions of the two parties were mutually destructive. The employee’s version, that he was dismissed, was no less probable than the employer’s version that the employee walked off the job. The two versions were equally probable on the facts.
With no other factors present to influence a finding either way, the commissioner concluded that the probabilities on the facts were evenly balanced. The onus therefore had to decide the outcome. Since the employee had not discharged the onus to show that, on a balance of probabilities, he was dismissed, the application was dismissed. Alcohol – one sheet… two sheets… three sheets to the wind?

Mokgatlhe / Xstrata South Africa (Pty) Ltd (Merafe Boshoek Works) [2011] 6 BALR 584 (MEIBC)

The employee’s breathalyser test results indicated that the alcohol content was initially 0.028%, and 38 minutes later it was 0.015%. A witness on behalf of the employer referred to the code of conduct in terms of which a final written warning must be issued for the first offense for being under the influence of alcohol when reporting for duty. The employee worked in a high risk area as cleaner and had already received a final written warning relating to the same offense. According to the employer dismissal was the appropriate sanction as the employee had attended a counselling session after the previous offense. The employee, who sought reinstatement, testified that he consumed alcohol the day prior to the day on which he underwent the breathalyser test. He was fit to conduct his duties and therefore pleaded guilty to the offence but only to the extent that he smelt of alcohol.

The commissioner held that “to prove to be under the influence of alcohol it must be shown that there was an impairment of the employee’s faculties”. The commissioner further pointed out that a breathalyser test is not definitive, and that where tests show a low margin of alcohol in the blood, “it is required to substantiate the intoxication with corroboratory evidence such as manner of speech, bloodshot eyes and unsteadiness, etc.” The employer failed to do this. The rapid decrease in the alcohol percentage indicated that it could have been possible that the employee would have been able to work.

The dismissal was found to be substantively unfair and reinstatement was ordered. Provocation – time to cool off NUMSA obo Jenneker / Eagle Door National Glass [2011] 6 BALR 588 (MEIBC)

According to the employer, the employee Mrs Jenneker, started a fight after clock-out time by slapping a co-employee through the face. The co-employee defended herself and told the employee that she did not want to fight. The employee testified that on the day in question the co-employee called her a b***h on two occasions and accused her of gossiping. After clocking out, the employee waited at the car which would give the co-employee a lift. When the co-employee approached the car, she started yelling at the employee. They started to fight. It was the employee’s defense that she was provoked and therefore not guilty of assault. The employer contended that it was a case of pre-meditated assault. The commissioner held that the employee and her co-employee had engaged in an altercation, and accepted that the two women had insulted each other during working hours. The employee however, had deliberately waited for her colleague outside the workplace in order to confront her. Even if the co-employee called the employee a b***h and accused her of gossiping earlier in the day, it cannot be said that those words provoked her into an automatic reaction of assault. The employee had some seven hours to cool down before waiting for and attacking her colleague. Considering the fact that the employee was intent on having it out with her colleague, the commissioner found it to be a deliberate and calculated act of assault and could not find any reason why Mrs Jenneker should not have been dismissed in the circumstances. Take the polygraph or else… Blignaut / The Core Computer Business (Pty) Ltd [2011] 6 BALR 642 (CCMA)
When the employer experienced a stock loss of 0.39%, which was above the acceptable rate of 0.25%, a decision was taken to subject employees to polygraph tests. Blignaut, the employee, refused to take the test. He was reminded about a clause in his contract of employment on polygraph tests. It was also explained to him that failure to take the test would amount to a breach of his contract of employment. When the employee still refused to take the test he was subjected to a disciplinary enquiry and dismissed. The employee testified that he was informed that a decision was taken to subject employees to a polygraph test over an incident wherein iPods went missing at the store when he was not on duty. He told the store manager that he was uncomfortable in taking the test due to his previous experience, and that the test was not reliable. He also refused to take the test due to the fact that he had a heart ailment and his heath could have been compromised if he had taken the test. The employer should have reprimanded him instead of dismissing him.

The commissioner referred to the clause in question which clearly states that the employer could require of the employee to be subjected to a polygraph test when the employer is of the view that it was necessary.

The prerogative to subject employees to polygraph tests lies with the employer. The taking of a polygraph test was part of the employee’s conditions of employment that he agreed to when he accepted an offer of employment. He was contractually bound to adhere to the condition of employment. The employer conceded that polygraph tests results were used to supplement other evidence and they could not be viewed in isolation. As to the employee’s claim that he had a heart ailment and that his health could have been compromised if he took the test, one would have expected him to have presented a medical certificate in support of his claim. In the light of the fact that the employee refused to obey a reasonable instruction after numerous requests, it was found that he breached his contract of employment and the dismissal was upheld. Discipline – workplace related and sooner than later

Mkhize / Road Accident Fund [2011] 6 BALR 660 (CCMA)

The employee, a senior forensic investigator, was dismissed for dishonesty after he took out two separate life insurance policies from Sanlam on the life of Hlengwa, his uncle and the life of Shozi, his cousin, without their consent. The Sanlam intermediary that the employee dealt with in taking out the life insurance policies was charged with dishonesty, alternatively gross negligence. She was found not guilty of dishonesty but guilty of gross negligence and was dismissed. Due to the prevalence of fraud the employer has adopted a zero tolerance policy against any form of dishonesty. The employee was aware of the policy; Code of Conduct for Staff Members of Road Accident Fund and the Disciplinary Policy and Procedure, which are applicable to all employees. The employee argued that his dismissal was unfair as the alleged misconduct was not workplace related, because he had not supplied false information to the insurance agent, and because employer had waited for about a year before instituting disciplinary action. The commissioner, referring to The SA Law of Unfair Dismissal pointed out that some nexus must be shown between the employee’s conduct and the employer’s business in order to dismiss an employee for misconduct that occurred outside the workplace: “As a general rule an employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee’s conduct and the employer’s business. In the absence of such nexus the employee’s conduct is likely to be non-work related conduct or as is sometimes termed, ‘off the job’ conduct . . . It is for the employer to establish that it has a legitimate interest in the matter which is sufficient to justify disciplinary action against the employee.” The commissioner held that:

• the employer had failed to establish that it had a legitimate interest in the matter of the insurance policies and the information provided therein which is sufficient to justify disciplinary action against the employee;
• there was no justification for the inordinate delay in taking disciplinary action against the employee. Prompt disciplinary action against an errant employee is an integral part of fair procedure. Undue delay in this instance was both unreasonable and unjustified that rendered the procedure followed in dismissing the employee unfair;
• the procedure followed was unfair as the employee was not notified (as per the requirements of the disciplinary procedure, which is incorporated into the contract of employment) that the charges were viewed as serious and could lead to dismissal
• the dismissal was procedurally flawed as the notice of dismissal did not inform the employee that he had a right to appeal against his dismissal.

Reinstatement was ordered.

For more information contact Nicolene Erasmus [email protected]