You can’t just tell an employee to pack up and go

Ivan Israelstam

The Code of Good Practice: Dismissal imposes several requirements on an employer who is considering dismissing an employee for misconduct.

Three of these requirements are:
1. The employer should first consider factors such as the employee’s length of service and disciplinary record;
2. The misconduct must be of such a grave nature that it makes a continued employment relationship intolerable; and
3. An employee should be dismissed only if he/she has been found guilty of gross misconduct.

Examples of gross misconduct include:

• Wilful damage to the property of the employer;
• Wilfully endangering the safety of others;
• Physical assault on the employer, a fellow employee or a client;
• Gross insubordination; and
• Gross dishonesty.

Dishonesty has traditionally been seen as an offence serious enough to warrant dismissal as it could render an employment relationship intolerable. This is because dishonesty damages the employer’s ability to trust the employee. In the past, in cases where an employee has stolen from the employer, judges and arbitrators have accepted that such dishonesty, by its very nature, has rendered continued employment intolerable.

More recently, though, there has been a noticeable shift away from this view. It has been pointed out that the code of good practice recommends dismissal for “gross” dishonesty and not all dishonesty. The implication is that not all acts of dishonesty make the employment relationship intolerable and therefore merit dismissal.

Adding to the complexity of the debate is the fact that the concept of trust is a tricky one, often difficult to define. However, I would like to suggest that, in the context of labour law, the employee’s duty of trustworthiness means that the employer has the right to expect the employee to behave honestly at all times. This means that the employee’s conduct should not have to be monitored.

The courts have frequently supported this view and have therefore often upheld employer’s decisions to dismiss employees who have been guilty of gross dishonesty in the workplace. In the case of Shoprite Checkers (Pty) Ltd v the CCMA (CLL, Vol 18, August 2008, case number JA 08/2004) the employee was dismissed for consuming the employer’s food without paying. Both the Commission for Conciliation, Mediation and Arbitration and the Labour Court ruled that the dismissal had been unfair.

The employer therefore went to the Labour Appeal Court, which found that:

• The employee had a clean disciplinary record and had worked for the employer for nine years;
• The employee had acted in flagrant violation of the employer’s rules;
• The trust relationship had broken down; and
• The dismissal, therefore, had been fair.

In the case of Shoprite Checkers (Pty) Ltd v the CCMA (CLL, Vol 18, August 2008, case number JA 46/05) the circumstances were amazingly similar to those of the one discussed above. The same employer was involved and the employee was also dismissed for consuming the employer’s food without paying for it. But in this case the Labour Appeal Court found that the employee had 30 years of service and was a first offender.

The Labour Appeal Court therefore agreed with the CCMA that the dismissal had been too harsh. It is unclear whether it was the stronger mitigating circumstances of the second case that made the difference or whether the Labour Appeal Court judges sitting in the two cases merely interpreted the law differently. Either way, the uncertainty makes it dangerous for employers to continue to rely on what used to be tried and trusted legal principles when dismissing employees.

Instead, employers need now, more than ever before:

• To take note of mitigating circumstances, but show clearly why they are outweighed by other factors;
• To ensure that they can justify the dismissal by proving that the employee’s conduct rendered a continued employment relationship intolerable; and
• To bring this proof to the CCMA and convince the arbitrator that the employee’s conduct had not merely damaged the working relationship but had, in fact, destroyed it.

This is not an easy task because many employers do not have an in-depth understanding of what arbitrators see as “intolerable” or as a “destruction” of trust.

• Ivan Israelstam is the chief executive officer of Labour Law Management Consulting. He can be contacted at (011 888 7944) or e-mail [email protected]
• Our appreciation to Ivan and The Star newspaper for permission to publish this article.