Dismissal (Misconduct)
- Marius Scheepers
- 2 days ago
- 85 min read
Labour Law cases decided in the South African Courts (Highlights and updated 1997 to 06 2025 [Copyright: Marius Scheepers/15.10.1])
desertion, dismissal (misconduct), incapacity, poor performance
Desertion
prolonged absence might serve as evidence of desertion
Termination of employment only occurred when the employer subsequently accepted the repudiation of the employee
JR783/07
Khulani Fidelity Services Group v CCMA & Others
unlike ordinary absenteeism, desertion required an element of intention not to return to work
JS705/08
SATAWU obo Langa & Others v Zebediela Bricks (Pty) Ltd & Another
Termination of contract
amounts to breach of the contract of employment, but does not in itself bring the contract of employment to an end. Held: The breach of the contract does, in itself, not bring about a termination of the contract. [32] The termination requires an acceptance of the breach by the employer, which then amounts to a dismissal
J774/99
Lebowa Platinum Mines Ltd v CCMA & Others
s 17(5)(a)(ii) of the Public Service Act
employee, who was prohibited by his/her contract of employment from taking any
remunerative employment, took up other remunerative employment he/she had to be deemed to have resigned. Section 17(5) read with s 30(b) meant
exactly that. Instead of resignation it used the word discharged.
JA 71/10
Solidarity and Another v Dickens NO and Department of Health: Free State
whether the employee had furnished sufficient and reasonable justification for her extended absence.
JR 2679/10
Thubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others
Disciplinary code, can be dismissed after 5 days, also to be reversed after employee return, e dismissal was not final and did not close the door to the possibility of it being reversed on the employees return and his beingable to rebut the inference of desertion by providing a satisfactory explanation for both hisabsence and his failure to inform his employer. The employee bore the onus of providing asatisfactory justification for his absence, this being a matter within the sole knowledge of theemployee. In the circumstances of the present matter, where the employee had not providedany such justification, the dismissal was justified.
JR 182/11
Impact Ltd (Mondi Packaging SA (Pty) Ltd) v National Bargaining Council for the Wood and Paper Sector and Others
charges
JR603/2015
Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017)
Police and Prisons Civil Rights Union v Minister of Correctional Services and Others [1999] 20 ILJ 2416 (LC) at 2425, par [33]
the charge sheet should contain factual information as to the nature of an allegation against the employee sufficient for an employee to know the case he is expected to meet.
wanted to take leave as his son was due to attend a circumcision school...that he had reported his absence to a fellow employee, and had during his sick leave, went home. He had conceded that his initial request to take leave was declined. During his last shift at work he fell ill...the dismissal of Mr Sonnyboy Manyoni was fair
[30] I align myself with the views expressed above and agree that in circumstances where an employer in terms of its own disciplinary code/policy and procedure is permitted to deem an employee to have deserted after a certain period of unexplained absence, there is no requirement for that employer to establish an intention to desert on the part of the employee. Upon the employees return and an appeal process granted in terms of the policy, the onus is on the employee to provide satisfactory justification for the absence.
[31] The issue of whether there was an obligation on Glencore to make attempts to contact Manyoni seems to have persuaded the Commissioner in finding that the dismissal was substantively unfair. This was notwithstanding the fact that in terms of clause 4.4.3 of the Policy, the onus was upon Manyoni to justify his prolonged absence. I appreciate that in Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45], the approach, albeit expressed obiter, seems to suggest that there is an obligation on an employer to provide some evidence that an absentee employee was contacted. That approach was long stated in South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13], where it was held that an employer who has the means of communicating with the absent employee must do so. It is my view that even if there is such a requirement or obligation on the employer, it does not absolve that employee from his/her obligations to contact the employer, especially where the companys policy explicitly so requires.
Grootboom v National Prosecuting Authority and Another[2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) at para 45
Although one might be tempted to conclude that, by virtue of having undertaken a scholarship to the UK, the applicant would, in all likelihood, have found it impractical to return to resume his employment if he were recalled, I find such a conclusion to be unfounded and speculative in the absence of any evidence that he was called to take up his duties and failed to do so. Moreover, the NPA knew where the applicant was at all relevant times as it was communicating with him via email. It made a conscious decision not to recall but to discharge him. This fact leads me inexorably to conclude that the finding by both the Labour Court and the Labour Appeal Court in this regard is wrong.
[17] At para 15, where it was stated that;
Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.
South African Broadcasting Authority v CCMA[SABC v CCMA and Others (2002) 8 BLLR 693 (LAC) at para 13
It is not desertion when an employee who is absent from work intends returning to work. Desertion necessarily entails the employees intention no longer to return to work. The employer would have to establish this intention in a fair process.para 15...Where an employer has an effective means of communicating with an employee who is absent from work, the employer has an obligation to give effect to the audi alteram partem rule before the employer can take the decision to dismiss such an employee for his absence from work or for his failure to report for duty.
[32] Thus, where desertion is regulated by the employers disciplinary code as in this case, or some other statute, the principles set out in Grootboom v National Prosecuting Authority and Another[18] by this Court in my view ought to find application, and the employee must show good cause by providing a reasonable and satisfactory explanation for his or her absence without authority, irrespective of whether the employer is required to attempt communication with that employee during his or her absence or not. The employer in considering whether or not good cause has been shown must in addition, take into account considerations of fairness and justice, and further consider whether or not the unauthorized absence was wilful on the part of the employee.
(complete)
Dismissal
Misconduct
not reporting overpayment
if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable
C429/01
Consol Ltd t/a Consol Glass v Ker NO & Others
Misconduct
Dishonesty
Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently
had not tried to conceal facts from the employer, as alleged, and that they had therefore not been dishonest
DA4/01
Nedcor Bank Ltd v Frank & Others
misconduct*
derivative misconduct
association with culprits
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Misconduct
Assault
CA13/98
County fair foods
Incapacity
JA 69/98
EC Lenning Ltd
Misconduct
Fraudulent scheme
DA24/98
Reddy
Misconduct
Fraud
DA2/99
Toyota
Misconduct
Absent vs no leave form
JA58/99
Karbochem Sasolburg
Misconduct
No issue warning
Insubordination; employer may require employee to perform whatever work is required of him provided that such work falls within the scope of his ability
PA6/99
Waverley Blankets
Misconduct
Nature of warning
PA6/99
Waverley Blankets
Misconduct
Falsifying overtime claim
Trust relationship had not broken down; Long service; Remorse; Appeal dismissed
JA 68/99
De Beers Consolidated V CCMA
Misconduct
Falsifying overtime claim
Trust relationship had not broken down (Anglo American farms t/a Boschendal Restaurants vs Komjwayo (1992) 13 ILJ 573 (LAC))
JA 68/99
De Beers Consolidated V CCMA
Misconduct
desertion
Consistency
CA9/99
Cape Town City Council Masitho
Misconduct
Theft of 16 meatballs
Theft or attempted theft equally serious; dismissal due to dishonesty
JA34/00
Rustenburg Platinum Mines v NUM
Misconduct
Stabbing person outside place of employment; effect of the misconduct on the employment relationship
J5079/00
Foschini Group v CCMA
Misconduct
Protected strike
Blocking employer's premises; serious misconduct (Imperial Car rental v TGWU LAC NH11/2/22/436); Fair
J2211/99
PPWAWU v Metrofile
Dismissal of Chief Executive Officer
the employer is entitled to set its own performance standards for a senior employee and to assess whether those standards have been met, and that a court will not intervene unless the standards or the assessment are grossly unreasonable
JA80/99
Brereton v Bateman Industrial Corporation Ltd & Others
Racial remark
calling of, or, the reference to, an African person in South Africa as a Kaffir by a person who is not an African is part of the racial abuse
PA1/01
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others
Misconduct
Currying and firing firearm
Sanction: Held further that the Commissioner had committed a reviewable irregularity in interfering with the sanction imposed by the employer. Held: It is settled law that generally an employer’s sanction should not be interfered with except only in circumstances where the sanction is so excessive as to shock ones sense of fairness or in circumstances where sanction (sic) is totally unreasonable and unfair
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
Misconduct
Sanction
other case law sited: De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC)
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
Misconduct
Sanction
other case law sited: County Fair Foods (Pty) Ltd v CCMA & others (1999) 20 ILJ 1701 (LAC)
JR882/01
Harmony Gold Mining Co Ltd (Evander Operations) v CCMA
attempted to remove company goods (a portion of a roll of toilet paper)
charged of misappropriation of property
should have been charged with theft, if theft was to be relied on by the
P758/00
NUMSA obo Ngele v Delta Motor Corporation & Others
Misconduct
fraud; submitting a claim for overtime which he had not worked
Fraud is a dismissible offence and dismissal is the appropriate sanction in keeping with the trite principles of Labour Law
JR288/01
SA Post Office Ltd v Mooi NO & Others
alcohol
reading twice that permitted by the employer eight hours after he had commenced his shift and that this in itself was a dismissible offence
J4616/99
St Helena Gold Mines Ltd v CCMA & Others
assault
Disciplinary Procedure
final written warning; Two days later senior management altered the sanction to one of dismissal; employers disciplinary code made no provision for intervention or the overruling of such determination and that this was the first time it had intervened in such a manner
CA12/01
County Fair Foods (Pty) Ltd v CCMA & Others
Misconduct
Procedure
double jeopardy: delayed for three months before instituting a disciplinary hearing; already acquitted the employee of the offence at an earlier hearing; relied on a balance of probabilities when finding the employee guilty of the offence
JR716/01
Duiker Mining Ltd (Tavistock Colliery) v CCMA & Others
Misconduct
dishonesty and misrepresentation: qualifications
not consistently applied discipline in that other offenders had merely been instructed to remove their bars without being charged with misconduct, let alone dismissed.
D1152/01
McCord Hospital v Sithole & Another
Incapacity vs Misconduct
was not that the [employee] did not perform in the context of her appointment neglected to do so or did not do so to the best of her ability. Those would have been disciplinary issues, inviting a different form of reaction by the employer. The issue was one of incapacity, and inability on the part of the [employee] to achieve the reasonable standards of performance set for her by the [employer] notwithstanding what presents as a generous opportunity over an extended period to do so. That she could not achieve those standards in the end result became justifiably an untenable situation as far as the [employer] was concerned (at [4] - [23], referring inter alia to Sun Couriers (Pty) Ltd v CCMA & others (2002) 23 ILJ 189 (LC),
C471/01
Danzas AEI (SA) (Pty) Ltd v Wanza NO & Others
Misconduct
disciplined for taking a quarter loaf of bread when he was not allegedly entitled to
the employer had not discharged its onus to show that the dismissal was fair because it had not shown that the employee was not authorised to take the bread could not be faulted
D1366/02 and D1367/02
Cambridge Meat v Mhlongo & Others
Insubordination
Obedience and loyalty on the part of an employee constitute the core and nucleus of a successful and sustainable working relationship between employer and employee. Flagrant defiance by an employee of a reasonable and lawful instruction given by a competent authority of the employer, within the ambit and scope of the employees employment, is therefore both abhorrible (sic) and untenable.
that no evidence had been led before the Commissioner to show that the employment relationship had irretrievably broken down. Held that the sanction of dismissal imposed by the Commissioner was not rationally justifiable
J3721/00
NUM & Another v CCMA & Others
Code
the fact that a penalty was competent does not mean that the suggested penalty is mandatory and that the code should (only) serve as a guideline
J3721/00
NUM & Another v CCMA & Others
Misconduct
absenteeism
parity of treatment
C1055/01
SRV Mill Services (Pty) Ltd v CCMA & Others
parity principle
that inconsistent application of discipline may lead to perceptions of unfair treatment and that an employer may therefore be required to justify differential treatment of employees in order to avoid a finding that there was in fact unfair treatment
C1055/01
SRV Mill Services (Pty) Ltd v CCMA & Others
Misconduct
Strike
Held that a consideration of conflicting evidence revealed no factual basis for such differentiation and concluded that most of the dismissals were unfair, as indeed being selective, although four individual dismissals were upheld on substantive grounds.
JA37/01
CEPPWAWU; B Lawson and Others v Metrofile (Pty) Ltd
Misconduct
Theft of Rubber tape
Commissioner erred in seeking to correct the employers sanction and failed to give proper consideration to the employers zero-tolerance policy. Held further that shifts in policy affect the requirement of consistency and render it a less than hard and fast rule. With regard to the issue of a breakdown in the trust relationship reference was made to the viewpoint of Grogan in Dismissal (Juta, CT 2002) on page 99 and the judgment in De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC)
Dismissal fair
C819/02
Consani Engineering (Pty) Ltd v CCMA; Rabker-Naicker H NO; National Union of Metalworkers of SA & Shoko, J
Misconduct
with rudeness to a client, poor customer service and damaging the image of the company
Unfair
C682/03
The Magic Company v CCMA, Mazwi V & Phete E
Misconduct
Gross negligence, unauthorised use of company funds
Ms Molope admitted that she held the responsibilities of an Area Manager but not the authority to act as such; noted that this contradiction was never properly explained.
substantively fair
JR1950/02
Molope, Ms Phoebe v Commissioner BH Mbha; CCMA & Morkels Stores
Misconduct
Irresponsible use of company credit card (not fraud)
Ms Marks reported herself to Ms Singh in the financial department saying that she had used the company card for personal expenses and wanted to know how to effect repayment. Thereafter she continued to use the card although not often, the figure of the usage was agreed to have been R1000, although other figures were mentioned from time to time. Ms Marks argued that there was no written policy dealing with the use of company credit cards
Unfair
JR152/04
Tibbett & Britten (SA) (Pty) Ltd v Marks, Marilyn; National Bargaining Council for the Road Freight Industry & Tsatsimpe, Mapalo N.O.
Misconduct
contravention of LOA rules
had made a false declaration
JA 45/03
ABSA Brokers (Pty) Ltd v Moshoana, GN N.O.; CCMA; Van Staden, J P
Misconduct
absenteeism
employee had communicated the arrest; dismissed the employee in absentia despite knowing that he was in prison; that there had been no indication that he had been wilfully absent; there had been a supervening impossibility for him to tender his services
JR 845/01
Trident Steel (Pty) Ltd v CCMA; Commissioner F Mooi; NUMSA & Vundla J
Existence
nobody had informed him of his dismissal and that he had relied solely on his own perceptions
therefore lacked jurisdiction and acted ultra vires and therefore the award fell to be set aside.
C218/03
American Leisure Corporation, Durbanville t/a Planet Fitness v Van Wyk, J; Connan, W N.O. & CCMA
Misconduct; omitted from his CV that he had previously worked for KSI; it was rightly considered risky for the company to keep an employee in a senior position if he were no longer trusted.
JR2116/03
Oracle Corporation SA (Pty) Ltd v CCMA; Nowosenetz, L N.O. & Clark, B
Misconduct
sentenced to various terms of imprisonment; Charged he was not gainfully employed
in s 17(5)(a)(i); and that dismissal by operation of law was not dismissal in accordance with s 186 of the LRA; dismissal in accordance with s 17(2)(c) was not relevant because the dismissal was substantively by operation of law.
JR563/03
Seema, L E v General Public Services Sectoral Bargaining Council; Commissioner M Mashego & Department of Justice
Misconduct
sending an offensive e-mail
; it had been sent to a computer which was owned by ING
Monitoring Prohibition Act (MP Act) ; and it had not been unlawful to read the e-mail
JR613/02
Van Wyk, S v Independent Newspapers Gauteng (Pty) Ltd; CCMA & Boyce, T N.O.
Absence from work
The employees were not dismissed but discharged by operation of law. The arbitrator and the Council had no jurisdiction to consider the matter.
D547/03
MEC for Education & Culture v Mabika N B; Dubazana, D N; NATU; Balkaran, S T & Education Labour Relations Council
Misconduct
Receiving a tip
Not an actionable offence.
JR1173/03
Swiss South Africa (Pty) Ltd v Louw, K N.O.; CCMA & Narayen, G
Misconduct
gaining access to managements drawers without authorisation it was noted that one witness testified before the Commissioner that the employee had forced open the drawer and removed a confidential document; the employee had done this openly in front of the witness; have been procedurally and substantively unfair
delay in instituting disciplinary proceedings had prejudiced the employee and no proper witness statements had been taken.
JR686/03
Riekert, F W v CCMA; Raffee, M S N.O. & Emerald Safari Resort & Casino (Pty) Ltd
Misconduct
behaving aggressively towards a customer and using abusive language, thus damaging customer relations.
employer was entitled to adopt the attitude that the risk of employing a senior employee who engaged in such behaviour and showed no remorse was unacceptably great
DA1/04
The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA
Misconduct
Remorse
De Beers Consolidated Mines Ltd v CCMA & Others ((2000) 21 ILJ 1051 (LAC)
DA1/04
The Foschini Group (Pty) Ltd v Fynn, M; Pather, S & CCMA
Misconduct
Protected strike
while picketing at the Bloemfontein offices he incited others to picket, he threatened to hold the management of the branch hostage, and he caused damage to company property
Commissioner had committed a gross irregularity when he completely ignored evidence of the nature of the strike action. They averred that there was clear and undisputed evidence that the strike, despite being protected, was often violent and destructive; he had made no direct threats at all
JR1275/01
Fidelity Springbok Security Services (Pty) Ltd v The CCMA; Cronje, NO & Telford, W
Procedure
Double jeopardy
Branford v Metrorail Services (Durban) and Others [2004] 3 BLLR 199(LAC) the arbitrators award was set aside as the employee was punished twice for one offence. In their decision the LAC also relied on the finding in BMW (SA)(Pty) Ltd v van der Walt (2000)21 ILJ 113(LAC) which held that a second disciplinary enquiry may be opened against an employee if it was in all circumstances fair to do so.
C198/04
SATAWU obo Finca, X v Old Mutual Life Assurance Co (SA) Limited & Burger, J
Misconduct
gross misconduct; removed bones from chuck steak
was an established labour law principle that the value of unauthorised stock appropriation was irrelevant and that the correct sanction was dismissal
JR1046/02
Shoprite Checkers (Pty) Ltd v CCMA; Commissioner Hlatshwayo, MD & SACCAWU obo Maseko, D
Misconduct
Alcohol
breathalyser showed a red indicator and the employee was told to leave the company premises; The arbitrator observed that the employer had been inconsistent in the application of the rule against the use of alcohol at the workplace and found that because of the inconsistency the dismissal of the employee had been unfair
P539/02
United National Breweries (SA) v CCMA; Bono L N.O. & FAWU obo Mlonyeni
Inconsistency of sanction ; the employer had failed to discharge the onus of justifying the differentiation in treatment
guidelines for employers on how to deal with matters of inconsistency were given in Cape Town City Council v Masitho & Others ((2000) 21 ILJ 1957 (LAC)
JR47/05
Rustenburg Platinum Mines Ltd (Bafokeng Rasimone Platinum Mine) v CCMA; Matlala, ML N.O.; Solidarity & Le Roux, R
Misconduct
employees clocked in by their colleague had not yet arrived at work although the rest were on the premises. The employees were charged with fraud.
finding that the employees must have benefited in order for their actions to constitute fraud was an error of law
JR 911/05
Kloof Gold Mine: A division of Goldfields Mining SA (Pty) Ltd v CCMA; Cachalia, A N.O.; United Association of SA & Others
Consistency
consistency was an element of disciplinary fairness to be determined in each case and it should not be rigidly applied (see SACCAWU & Others v Irvine & Johnson [1999] 20 ILJ 2302 (LAC)
JR 953/04
Minister of Correctional Services v Mtembu, J B; The General Public Service Sectoral Bargaining Council & Groves, W
Misconduct
Assault
the sanction of dismissal was not appropriate as Mr Tyumse had probably been provoked or had acted in self-defence. In her finding she also took into account Mr Tyumses clean service record of more than 20 years as a strong mitigatory factor
JR 881/04
Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty) Ltd; Savage, K N.O.; Tyumse, S & NUM
Misconduct
dishonesty, attempted blackmail or extortion, and conduct destroying the employment relationship; attempted extortion of R5 million; the arbitrator also failed to consider whether the company was entitled to charge Mr Breugem with misconduct a second time, despite the charges being different, after the ruling of the first hearing; company to pay Mr Breugem compensation in an amount equal to nine months remuneration.
C 608/05
Breugem, P v De Kock, C N.O.; CCMA & Weltevrede Kwekery
Fixed term contract
Amount of compensation in terms of s 194 cannot extend beyond the termination date of the contract
C934/01
Nkopane & Others v Independent Electoral Commission
Consistency
It therefore does not necessarily follow that the outcome of a disciplinary hearing of the employees charged with the same offence will automatically be the same.
JR315/06
Rustenburg Platinum Mines v CCMA & Others
Retrench
no consultation with union outside bargaining unit
Lifo not followed
D987/04
Perumal & Another v Tiger Brands
Rules
deviating from own code and dismissing employee while code recommended final warning
JR2571/04
Wozney v Myhill & Others
Incapacity (health reasons)
enquire into the employees ability to perform the work; the extent of the employees inability; the extent to which the employees work circumstances can be adapted to accommodate the disability and alternatives short of dismissal.
consult in a meaningful
consider options for reasonable accommodation; alternatives will cause unjustified hardship
JR 662/06
Standard Bank of South Africa v CCMA & others
Date of dismissal is the date on which employee informed of the non-renewal or renewal on less favourable terms not date on which contract expires
not date when contract terminated
190(2)
P139/07
Ndlambe Municipality v CCMA & Others
Misconduct
Imprisonment
preferred charge; supervening; impossibility of performance,
JR2025/06
Eskom Ltd v CCMA & Others
Fraud
No fraud established; Dismissal unfair; Employee could have been dismissed for gross negligence had he been charged with that
D757/06
Mhlatuze Water Board v CCMA & Others
Misconduct
Employee misrepresenting himself as an attorney acting on employers behalf; Dismissal justified
D863/06
Nampack Corrugated Containers (Pty) Ltd v CCMA & Others
Misconduct
Alcohol
fair
C5054/06
NUM & Another v CCMA & Others
Misconduct
Whether conduct work related; Employer to show a nexus between the employees conduct and its business; Stokvel scheme
JR2558/05
Pick n Pay Family Store Brits v Molebalwa N.O & Others
Misconduct
Fairness of a sanction
employees belief that his action was in the interests of the employer and not in his own interest
C434/06
Worldnet Logistics (Cape) (Pty) Ltd v CCMA & Others
Poor performance
Employee not meeting targets over protracted period despite counselling; Dismissal fair
P286/06
Chesteron Industries (Pty) Ltd v CCMA & Others
Misconduct
Alcohol related
Insufficient evidence that employees faculties, performance or conduct affected
P488/05
Scrader Automotive (Pty) Ltd v MEIBC & Others
Reason
The reason for the dismissal also had to be the one in existence at the time the employee was notified of his dismissal
JR819/07
Landsec & Another v CCMA & Others
board membership
termination resulted in dismissal
JS349/07
South African Post Office Ltd v Mampeule
Consistency
An inconsistency challenge would fail where the employer was able to differentiate between employees who committed similar transgressions on the basis of, among others, different personal circumstances, the severity of the misconduct, or other material factors.
JR243/05
Southern Sun Hotel Interests (Pty) Ltd v CCMA & Others
Sexual Harassment
to be viewed from the point of view of the victim the question was therefore how the victim perceived the conduct, and whether or not the perception was reasonable
P487/09
Motsamai v Everite Building Products (Pty) Ltd
Meaning of "dismissal"
The fact that the employer had never expressly referred to dismissal in any email was not significant in any way, since it had not been necessary to use the word dismissal.
No return to work, refusal fair
JR1864/09
Setcom (Pty) Ltd v Dos Santos & Others
Operational requirements
provide sufficient information to enable them to participate meaningfully in the process
C945/09
Weber v Ordertalk SA (Pty) Ltd
Misconduct
Bringing name in disrepute
no evidence that relationship of trust had broken down.
P 233/10
Ikwezi Municipality v SA Local Government Bargaining Council and Others
Misconduct
Absence without leave
the reason for the employees absence, the duration of the absence, the employees work record, and the employers handling of this offence in the past. The onus rested on the employee to tender a reasonable explanation for her absence.
Sangoma course
JR1856/08
Kievits Kroon Country Estate (Pty) Ltd v CCMA & Others
Misconduct
Alcohol abuse
Was responsible for actions
Dangerous work
C644/2009
Transnet Freight Rail v Transnet Bargaining Council and Others
Misconduct
Absenteeism
Medical certificate by traditional healer
Rejected
JR1412/05
Vodacom (Pty) Ltd v CCMA & Others
Misconduct
E/e must be blamed
no breakdown trust relationship
P608/09
Prowalco (Pty) Ltd v CCMA and Others
Misconduct
insubordination
(i) an order, which could also be in the form of a warning, had to have been given to the employee; (ii) the order had to be lawful; (iii) the reasonableness of the order had to be beyond reproach; and (iv) the refusal or failure by the employee to obey the order had to have been serious enough to warrant dismissal.
JR3479/09
Motor Industry Bargaining Council v CCMA & Others
Misconduct
Refusal to work overtime
against BCEA
JR1639/05
Maneche & Others v CCMA & Others
Misconduct
Dishonesty
Procedure
no mitigation; cannot cure dishonesty
D600/05
Kalik v Truworths (Gateway) & Others
Misconduct
Language
"Monkey"
The level of malice, the extent of the abuse and its degree are factors that may aggravate the offence.
D202/06
Edcon Ltd v Grobler & Others
Misconduct
HIV AIDS
Conflict of interest
D781/05
Bootes v Eagle Ink Systems KZN (Pty) Ltd
Misconduct
Alcohol
failure to prove
JR1895/05
Astore Africa (Pty) Ltd v CCMA & Others
Misconduct
Dishonesty
Presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, such as long service and a clean record are likely to have a minimal impact on the sanction to be imposed
D679/04
Hullet Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others
Misconduct
Reasons at time of dismissal apply
DA 10/05
Fidelity Cash Management Service v CCMA & Others
Misconduct
racist remark
"he felt that the manager was busy"; interrogating him as if I am in Vlakplaas here.
employers should also guard against labelling actions as racist without having investigated properly.
JR3232/06
Vodacom (Pty) Ltd v Gildenhuys N.O. & Others
Misconduct
stock loss
JR2980/05
Mercurius Motor Transport v Moletsane N.O. & Others
Misconduct
Sanction
Employer may not increase sanction on appeal unless provided for in its disciplinary procedure and audi alteram partem rule applied
Misconduct
Theft
Driver deviating from route on day employers fresh produce stolen
D550/06
Freshmark (Pty) Ltd v SACCAWU & Others
Misconduct
Dismissal; Inconsistency
One employee found guilty and another not despite the circumstances of their alleged transgression being the same; Unfair
JR955/07
Alstom Electrical Machines (Pty) Ltd v CCMA & Others
Misconduct
Sanction
Whether employer may alter sanction of final warning imposed by chairperson to dismissal; findings and conclusions were so grossly unreasonable as to warrant interference by the employer
JR 2158/07
Rustenberg Base Metal Refiners (Pty) Ltd v Solidarity & Others
Misconduct
dishonesty
dismissal of the third respondent (the employee) for misconduct was too harsh. There were various authorities to support the view that it was not every act of dishonesty that would lead to an automatic dismissal
JR1609/06
Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others
Misconduct
dishonesty
Other case law cited
Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC
JR1609/06
Cash Paymaster Services Northwest (Pty) Ltd v CCMA & Others
Misconduct
Breathalyzer test
company policy on Breathalyzer
D483/06
Arangie v CCMA & Others
misconduct
pornography
inconsistency; parity principle
First, it was trite that not every wrong conclusion of law led to a conclusion that there had not been a fair trial; the mistake of law had to be material. Secondly, the law as it currently stood was that an employer was entitled, when it was fair to do so (subject to the qualification that it was only in exceptional circumstances that it would be fair), to revisit a penalty already imposed and substitute it with a more severe sanction.
D460/08
Samson v CCMA & Others
Misconduct
Consistency
Gravity of misconduct relevant; seniority relevant; different sanction justified; application dismissed
JR2629/07
Nel v The Transnet Bargaining Council & Others
Misconduct
Insubordination
finding of insubordination as opposed to gross insubordination in arriving at the conclusion that dismissal was too severe a sanction
C174/07
m Hand-to-Hand Couriers v National Bargaining Council for the Road Freight Industry & Others
Misconduct
Alcohol
misconduct and incapacity due to ill health
JR2148/08
Saga Moses Mahlangu v Minister of Sport and Recreation
Misconduct
misrepresentation qualifications
trust relationship not broken
JR531/08
Westonaria Local Municipality v South African Local Government Bargaining Council & Others
Misconduct
malicious damage to an aircraft and not following standard operating procedures.
JR2353/05
Equity Aviation (Pty) Ltd v SATAWU obo Thoga & Others
Misconduct
Penalty
Special leave for long period
Unlawful
D908/09
Antonie Willem Heyneke v Umhlatuze Municipality
Misconduct
Sanction
The nature of a commissioners task in considering the question of sanction was not to decide what he/she would have imposed as a sanction, but rather to decide whether what the employer decided as to sanction had been fair.
C966/08
Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others
Misconduct
Sanction
Other case law cited
Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC))
C966/08
Theewaterskloof Municipality v SALGBC (Western Cape Division) & Others
Misconduct
Previous disciplinary record
Irretrievable breakdown in relationship not established
JR1516/07
South African Revenue Services v CCMA & Others
Misconduct
Bringing name in disrepute
Objective test; examine entire context
Objectively, the type of conduct displayed by the employee had had the potential, at the very least, to call into question the reputation of the employer.
DA22/08
Timothy v Nampak Corrugated Containers (Pty) Ltd
misconduct
Renting of vehicle
breach of trust
JR2279/07
misconduct
breach of trust
Other case law cited
Edcon v Pillemer NO & Others (2009) 30 ILJ 2642 (SCA)
JR2279/07
Mathews v CCMA & Others
misconduct
Alcohol abuse
Consistency
consistency in cases of dismissal did not apply as a matter of rule, but rather as part of the assessment of the fairness of the dismissal
C23/08
National Union of Mine Workers & Another v CCMA & Others
misconduct
Rule Zero tolerance
C23/08
National Union of Mine Workers & Another v CCMA & Others
Misconduct
Theft
cable from a bin, no rule existed
P491/08
Ducan Manufacturing v The Metal and Engineering Industries Bargaining Council & Others
Misconduct
Consistency
Onus on employer to show
JR2915/08
Woolworths (Pty) Ltd v Matlala NO & Others
Misconduct
Sanction:
following factors: the employee had had an unblemished service record of 16 years; the value of the food taken by the employee had been minimal; it had been evident from the evidence presented at arbitration that the employee had not acted in flagrant violation of company rules; the item the employee had taken was not a luxury item or an item which the employee had stolen to enrich herself; the employee had not been employed in a supervisory position; and she had not worked in a specialty department, from where most of the shrinkage in the employers shop originated.
JR2786/08
Superand Superspar v Retail & Allied Workers Union obo Khoza & Others
Misconduct
False driver's license
no remorse
trust breached
Misconduct
Procedure
less formal approach particularly suitable where senior management employee; aware that his misconduct had destroyed the trust relationship; conceded to superior that he had failed
C109/2010
Nitrophoska (Pty) Ltd V CCMA and Others
Misconduct
Procedure
Other case law cited
Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others (2006) 27 ILJ 1644 (LC)
C109/2010
Nitrophoska (Pty) Ltd V CCMA and Others
Misconduct
Assault
30 years service; fairness in favour of the employee
(i) the employee had not denied the commission of the offence; (ii) he had accepted that what he had done was wrong, and had subjected himself to a further medical assessment and treatment; (iii) the offence had been a result of provocative behaviour on the part of the learner; and (iv) the disciplinary action had been taken only because of pressure from outside the school. The matter could possibly have been resolved through internal facilitation.
JR2885/08
Stander v Department of Education, North West
Misconduct
Insubordination
failed to wash his truck
employer had acted too hastily in dismissing him; progressive discipline
JR 896/10
Karan Beef (Pty) Ltd v Mbelengwa NO and Others
Misconduct
Theft copper wire
Défense he was a kleptomaniac, issue before the arbitrator concerned the dishonest conduct of the respondent
JR 2191/09
Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others
Misconduct
influence of alcohol
category of misconduct for reporting for duty under the influence of alcohol had not been extinguished by the incapacity classification for employees with alcoholism. An obligation to assist an employee who does not suffer from such incapacity does not rest on the shoulders of an employer. Such an employee is responsible for their actions and can, and should, be held accountable for any misconduct they commit. Once a commissioner finds that an employee is not an alcoholic he/she is required to consider whether a finding of guilt is fair and whether the sanction applied by the employer is reasonable and justified in the circumstances. In order to do this the commissioner is required to continue to apply the law relating to misconduct and not that relating to incapacity. A further consideration ought to be the implications of being lenient in the application of an important rule and the message such leniency sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust. The commissioner had failed to take these principles into account in coming to the conclusion that he did
D822/10
Builders Trade Depot v CCMA and Others
Misconduct
corruption
JR948/09
Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others
Misconduct
Corruption
Prevention and Combating of Corruption Activities Act of 2000
JR948/09
Director-General, Department of Public Works and Another v Public Service Sectoral Bargaining Council and Others
Misconduct
absenteeism
absence from work for a period of eight days.
laid down a rule; instructed to call his manager directly before six; not unreasonable for the employer to want to know when the applicant would be back at work
D994/09
Toyota SA Motors (Pty) Ltd v Lewis and Others
Misconduct
alcohol was being sold on the farm
employee called out that he sold alcohol
JR 433/10
Rechs Nurseries (Pty) Ltd v CCMA and Others
Misconduct
Alcohol
Zero tolerance
Level of alertness required could not be compared to that of a pilot Dismissal too harsh in the circumstances
C24/2011
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others
Misconduct
Alcohol
type of the work
did not perform skilled, technically complex and responsible tasks: he was a general worker who was loading tyres onto a truck at the time
C24/2011
Taxi-Trucks Parcel Express (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others
Misconduct
corruption
J420/08
SAMWU v North West Housing Corporation & Another
Misconduct
Dismissal
Probation
No procedure followed
JR2175/09
South African Football Association v Ramabulana NO & Others
Misconduct
Dishonesty
Steeling R14-00 caught on security cameras
Employees conduct destroying trust relationship; Length of service and clean record cannot serve as mitigating factors
JR1068/02
Ster Kinekor Films (Pty) Ltd v Maseko N.O. & Others
Misconduct
for sleeping underground
dismissal was too harsh
JR1869/06
NUM & Another v CCMA & Others
Misconduct
Stock loss
evidence needed to be led to substantiate the fact that continued employment would be intolerable
JR1333\05
New Clicks SA (Pty) Ltd v CCMA & Others
Misconduct
gross negligence; security of cash
JR2853/07
Edgars Consolidated Stores Ltd v CCMA & Others
Misconduct
Sanction
take into account all the circumstances; consider the importance of the rule breached; consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employees challenge to the dismissal; consider the harm caused by the employees conduct; consider whether additional training and instruction may result in the employee not repeating the misconduct; consider the effect of dismissal on the employee and consider the employees service record.
JR2853/07
Edgars Consolidated Stores Ltd v CCMA & Others
Misconduct
Disciplinary notice
must be unambiguous and must contain sufficient and precise information to ensure employee has proper opportunity to prepare
JR1363/07
Davies Plumbing Civils CC v CCMA & Others
Misconduct
authority
the manager who had signed the letter authorizing the employees extended absence did not have the authority to do so; this could not become the problem of the employee.
JR1363/07
Davies Plumbing Civils CC v CCMA & Others
Misconduct
Procedure
Not allowed representation; delay in obtaining a representative was likely to have had an impact on the speedy finalization of the disciplinary hearing, a balance had to be struck between the interest of speedy finalization and a right to representation.
JR948/07
ITT Flygt (Pty) Ltd v Odgers & Others
Misconduct
sexual assault
Touching breast then immediate assault
JR2763/08
CASHBUILD (Pty) Ltd v Ramotshela NO & Others
Misconduct
Disciplinary hearing; illegal immigrant.
procedural fairness, Rampai J held that a meeting between an employer and employee could never be a substitute for a disciplinary enquiry and that what had happened in the meeting (in which he was informed of his dismissal) came nowhere close to a hearing.
JR1032/04
Sibande v CCMA & Others
Misconduct
procedure; Disciplinary action
Mandate
Board to decide
J1780/10
Dyasi v Onderstepoort Biological Product Ltd and Others
racial slur
we need to get rid of the whites
racism through indirect, underhand or divisible means
JR1904/2010
Modikwa Mining Personnel Services v CCMA and Others
Misconduct
disclosed confidential customer details
misrepresentation by the falsification of his CV
J2121/10
MTN Service Provider (Pty) Ltd v CCMA and Others
Absence
Attending traditional healer course
Ubuntu
Religious diversity
JA 78/10
Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others
Misconduct
Gross Negligence to be Negligence
loss of delivery of R135000 goods at bogus customer
Unfair
C151/2012
Solid Doors (Pty) Ltd v Hanekom NO and Others
Misconduct; Parity principle; Not consider final warnings in collective dismissal
D235/03
SATAWU & Others v Ikhwezi Bus Service (Pty) Ltd
Other case law cited
Trident Steel (Pty) Ltd v CCMA & Others (2005) 26 ILJ 1519 (LC)
JR2025/06
Eskom Ltd v CCMA & Others
Misconduct
operational incapacity ; No such category of dismissal
JR1061/07
Samancor Ltd v MEIBC & Others
Procedural fairness
Chairperson also acting as initiator; Unfair
JS877/05
Misconduct
Accepting a bribe
Consistency
Dismissal fair although inconsistent
JR 2028
Mphigalale v Safety & Security Sectoral Bargaining Council and Others
Misconduct
Imprisonment
trite that supervening impossibility of performance is a defence to breach of contract which would also include the employment contract. Where the employee is the cause of his absence from work, it appears that his service may be terminated. Where it is a factor beyond his control like an unlawful arrest which either leads to his acquittal or withdrawal of the charges, it cannot be said that the employee was absent without permission. As his incarceration was beyond his control, it could not be said that he was absent without permission. He had a valid reason for his absence and had to be reinstated but with loss of income.
JR1061/07
Samancor Ltd v MEIBC & Others
Inconsistency
Racist email
JR 3390/05
Edgars Consolidated Ltd (EDCON) v CCMA & Others
Theft
Value of items stolen not the determining factor; Regard must be had to the impact of the conduct on the employment relationship
JA08/04
Shoprite Checkers (Pty) Ltd v CCMA & Others
Misconduct
Gambling
no harm suffered
PA10/09
Volkswagen v Koorts
Misconduct
Charges
to be notified with sufficient particularity of the real allegations against her
DA4/06
Edcon Ltd v Pillemer N.O. & Others
Misconduct
Charges
charged for failing to report accident, found guilty for lying at hearing; unfair
DA4/06
Edcon Ltd v Pillemer N.O. & Others
Misconduct
Resigned but e/er decide to dismiss; no procedure; CCMA found procedurally unfair; no compensation
JA22/05
Ellerine Holdings Ltd v CCMA & Others
Misconduct
Timekeeping
JA37/06
Mutual Construction Company TVL (Pty) Ltd v Ntombela NO & Others
Misconduct
Theft of scrap metal
Zero tolerance
the dismissal of the employee had been justified for operational reasons and had been fair.
JA51/09
George Miyambo v CCMA & others
Misconduct
Collective misconduct
JA14/08
CEPPWAWU v National Bargaining Council for the Chemical Industry & Others
Misconduct
Removal, Attempted removal, unauthorized possession of 1 L milk
If E/r lost control
DA1/08
Rainbow Farms (Pty) Ltd v CCMA & Others
misconduct
false information in CV
to appoint a person to a post who was only qualified for the post by making untrue claims in her application
JA56/06
SA Post Office Ltd v CCMA and Others
misconduct
arbitrator and Labour Court holding that employee only negligent and dismissal not warranted
JA56/06
SA Post Office Ltd v CCMA and Others
Misconduct
Insubordination
"not every case of insubordination triggered a dismissal"
CA6/2011
Wasteman Group v SAMWU
forged signature, Expert witness, Employee did not provide his own witness.
JR2512/2007
National Union of Mineworkers and Another v CCMA and Others
Romantic affair, email
Employees conduct not bringing employer into disrepute.
C158/2011
HRP Distribution v National Bargaining Council for the Road Freight Industry and Others
Theft, two litre bottle of milk that had been delivered as a donation by a local dairy, the issue of the proportionality of the sanction to the offence was therefore not relevant: the critical issue was whether the employee was guilty of misconduct or not in the light of the facts of the case.
JA12/10
Matsekoleng v Shoprite Checkers (Pty) Ltd
Insubordination, failed to call fellow worker, failure to refer to disciplinary code.
JR2327/10
National Union of Mineworkers and Another v CCMA and Others
Insubordination
Hand over laptop, was totally unacceptable and absolutely undermined the authority of his employer over him.
JR853/2011
Ndwanya v SA Local Government Bargaining Council and Others
fraud, manager not trained and inexperienced, TV license not produced on sale.
JR 1387/09
JDG Trading (Pty) Ltd t/a Electric Express v Osler and Another
Failure to declare items at security, Unfair
D787/10
Woolworths (Pty) Ltd v CCMA and Others
Insubordination
persistent insubordinate behaviour could justifiably not be tolerated by any employer.
JA 25/11
NUM v Northam Platinum Ltd
Procurement policies, no insinuation
that he was out to enrich himself, if a senior manager accountable.
J1830/11
Passenger Rail Agency of South Africa (Pty) Ltd v Tokiso Dispute Settlement (Pty) Ltd and others
Misconduct
serious disrespect
Stated: that management harassed employees. The invitation did not prescribe the format and the contents of the comment about the employees views. Dismissal was not an appropriate sanction.
(JR221/12) [2013] ZALCJHB 167
Legobate v Quest Flexible Staffing and Others
Misconduct
Absence without leave
Failing to examine whether trust relationship had broken down.
(JR381/12) [2013] ZALCJHB 169
SATAWU obo Matlatso v CCMA and Others
Misconduct
Provided an affidavit to a professional consultancy concerning matters that were detrimental or potentially detrimental to his employers interests in potential litigation.
Dismissal fair
(JR 815/12) [2013] ZALCJHB 163
Buys v Tokiso Dispute Settlement (Pty) Ltd and others
Receiving gifts
Consistency: Have to take into account employees seniority and that magnitude of her offence compared to those of other employees.
(JR 3166/10) [2013] ZALCJHB 226
Nedbank Ltd v CCMA and Others
Constructive dismissal
Reduction in salary, Test: Causation, was resignation due to conduct of employer, was resignation as a result of us and fundamental breach of employment contract, was employer made aware of this.
JR 1551/11
Schindler lifts
Misconduct
Charges was negligence and not gross negligence, duration of offence and loss was very serious.
JR 1643/08
United transport and Allied trade Union v Gaylard
Dishonesty
Enticing other employees to strike, denial that he participated in strike, dishonesty, trust relation broken down, dismissal substantively fair.
(JR 2650/2010) [2013] ZALCJHB 216
Tiger Brands Field Services (Pty) Ltd v CCMA and Others
Misconduct/ Poor work performance
Clear from the evidence that the real reason was the perceived poor performance by the employee, Dismissal substantively unfair. Decision had been taken to terminate the employees services before the consultation process commenced.
(CA 15/2011) [2013] ZALAC 30
4Seas Worldwide (Pty) Ltd v CCMA and Others
Misconduct
Underbringing at till, only suspicion, Unfair.
(DA 4/11) [2013] ZALAC 29
Mbanjwa v Shoprite Checkers (Pty) Ltd and Others
Dereliction of duty and gross negligence
alleged dereliction of duty and gross negligence for failing to follow due procedure to shut down the plant
The arbitrator had furthermore failed to appreciate the task that confronted him in considering whether the trust relationship had broken down.
JR 2799/11) [2013] ZALCJHB 280
National Petroleum Refiners (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others
Alcohol
Arbitrator treating matter as one of incapacity despite the employee not having previously raised issue of alcoholism or sought assistance, No obligation on employer to assist employee who does not seek assistance.
(JR 667/2011, J 515/2013) [2013] ZALCJHB 302
ADT Security (Pty) Ltd v CCMA and Others
By operation of law
(JR 2934/11) [2014] ZALCJHB 8
Public Servants Association obo Lessing v Safety and Security Services Bargaining Council and Others
Alcohol
The existence and the reasonableness of the rule governing the conduct complained of was not disputed by the employee. Dismissal fair.
(JR 90/2012) [2014] ZALCJHB 14
Xstrata Coal South Africa v CCMA and Others
Biased:
Co-owner of business and husband of person who had made complaint. No evidence of bias on record and issue never raised or put to witnesses.
Consistency: never disputed that the employee had occupied the more responsible position as cashier and there was no evidence on important issues pertinent to the question of consistency for him to assume he was really dealing with comparable cases.
(JR3063/2010) [2014] ZALCJHB 48
Vaal River Motors CC v Dispute Resolution Centre and Others
Fraud, C.V.
Be no doubt in the trust of that person who was responsible for the maintenance of the applicants accreditation system. Her dishonesty in the present case was of a serious magnitude. Fair.
(D303-11) [2014] ZALCD 2
Rainbow Farms (Pty) Ltd v Dorasamy NO and Others
Sanction
Mere fact of breach of misconduct not entitling employer to dismiss. Consideration of an appropriate sanction constituted an important yet separate component of the arbitration process. Not even considered important factors such as the employees considerable length of service (24 years) and the fact that he had an unblemished service record with his employer for that long period.
(JR297/2009) [2014] ZALCJHB 76
Jansen v CCMA and Others
Authority
No quorum
(J620/14) [2014] ZALCJHB 122
IMATU and Another v City of Matlosana Local Municipality and Another
Biased
Employees had not challenged alleged bias at disciplinary hearing and not producing any evidence thereof.
(JR706/2012) [2014] ZALCJHB 137
Pillay and Another v Broadband Infraco (Pty) Ltd and Others
Misconduct.
she was given a prepared and already signed retrenchment agreement. She was instructed to sign the agreement or leave immediately. When she refused to sign she was told to pack her things and leave immediately. Charged with gross insolence and insubordination and was dismissed. She was provoked. Ulterior motive in proceeding with disciplinary action.
(JR1767/2012) [2014] ZALCJHB 114
Windscreen Distributors (Pty) Ltd v Motor Industry Bargaining Council (Dispute Resolution Centre) and Others
s 46 and s 48 of Close Corporations Act 71 of 2008 still applicable
Of member of a close corporation. No proper decision taken at meeting of close corporation to dismiss member. Dismissal null and void.
(C568/12) [2014] ZALCCT 29
Chafeker v CCMA and Others
Misconduct
Misrepresentation in job application
Registration of in terms of Act 56 of 2001. Prohibition of employment of security officers with previous convictions. Applicable only to convictions with in period of 10 years prior to coming into operation of the Act in November 2001.
(C 389/2011) [2014] ZALCCT 35
G4S Secure Solutions (SA)(Pty) Ltd v Ruggiero NO and Others
Misconduct
unauthorised absence
Dismissal without application of progressive discipline. This failure to warn employee of change in attitude should have been brought to attention of employee by commissioner
(P15/13) [2014] ZALCPE 11
Tom v CCMA and Others
Jail sentence without bail
Whether his incapacity was permanent or temporary in nature. The applicant was unable to perform his duties in terms of his contract of employment and that his employer had acted fairly by dismissing him.
(P561/11) [2014] ZALCPE 10
Gwadana v South African Local Government Bargaining Counsel and Others
consuming company property without authorisation
sanction
Precepts of Items 3(4) and 3(5) of the Code of Good Practice on Dismissal read with s 188(2) of the LRA, and the emphatic weight given by the Constitutional Court to the importance of having regard to a number of factors in deciding whether it was fair to dismiss an employee for misconduct. Would have dispelled the notion that a finding of guilt automatically determined the sanction. Applicant consistently dismissed any employee for the misconduct was not sufficient reason.
(C566/2011) [2014] ZALCJHB 359
Pick n Pay Retailers (Pty) Ltd v CCMA and Others
Misconduct: Theft
unauthorised possession of a bottle of mayonnaise
distinction between unauthorised position and theft. The court held that, generically, theft and unauthorised possession were both forms of dishonesty and both were premised on conduct of an employee which deprived the employer of the ownership of an item.
Unauthorised possession dispensed with the requirement of intention and called on the consideration of three elements, namely: 1 an item belonging to the employer, 2 which was found in the possession of the employee and, 3 for which the employee has no authority to possess.
Continental Oil Mills (Pty) Ltd v Singh NO and Others
(JR 2152/2010) [2013] ZALCJHB 30
Sylvania Metals (Pty) Ltd v Mello NO and Others
Misconduct: Breaking a rule
Was no need for a permit to adjust the blower valve as there was no proof that a policy existed to this effect and furthermore that if there had been need for a permit.
(JR 3246/11) [2015] ZALCJHB 35
Sylvania Metals (Pty) Ltd v Mello NO and Others
Misconduct
Viewing of pornographic material, give him a final written warning.
Implied term did not extend to include the right of an employer to substitute its own sanction for that of the chairperson, particularly in a situation where the parties to a collective agreement had elected expressly to confer on the disciplinary chairperson the sole power to impose the final sanction.
Dismissal was substantively fair. The employee was awarded 12 months remuneration as compensation for his procedurally unfair dismissal.
(C683/11) [2015] ZALCCT 14
South African Revenue Service v CCMA
Misconduct
Cashiers, cash was short to the extent of their cash floats.
Show signs of tampering. Not every irregularity would vitiate the entire award: the reasonableness of the arbitration award had to be assessed in the light of the totality of the evidence presented at the arbitration. The possibility that the store administrator could be responsible for the shortfalls was less persuasive given that there was uncontested evidence that a drop procedure had to be followed when dropping the bags.
(DA7/2013) [2015] ZALCD 17
Woolworths (Pty) Ltd v CCMA and Others
Misconduct
Told her that the company was no good and that she had made a mistake in joining it. The secret recording of interactions with the firm in the course of the process, was also not bona fide.
In the event the court reduced the compensation of four months remuneration it would have awarded, by half on account of her underhand conduct during the formal consultation process.
(J 1433/09) [2015] ZALCJHB 123
Raftopulos v Van de Venter Mojapelo Attorneys Inc
doctrine of common purpose
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Other case law cited
Fawu & Others v ABI and the SCA decision in Chauke & Others v Lee Service Centre t/a Lesson Motors.
JR2537/03
RSA Geological Services (Division of De Beers Consolidated Mines Ltd) v Grogan N.O.
Unauthorised possession
JR1685/12
Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015)
Woolworths (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2011) 32 ILJ 2455 (LAC) at para 34
Where an employee is found in unauthorised possession of company property, the evidentiary burden shifts to him to justify such misconduct.
theft
JR2986/2010B
Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015)
Kalik v Truworths (Gateway) & Others [2008] 1 BLLR 45 (LC) at [27].
[27] An employment relationship broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees that dishonesty will not be tolerated The rational for this approach are also informed by the consideration that a worker with an unblemished record cannot after an incident relating to an act of dishonesty, continue to be trusted. It is the operational risk to the business of an employer that arises from the dishonest conduct, which cancels off whatever good record the worker may have had before the commission of the offence. In other words there would be no purpose in conducting an inquiry into mitigating circumstances where a worker is guilty of misconduct relating to dishonesty. However, this approach would not apply in cases involving other forms of misconduct.
The factors to be considered would in my view be where the failure to intervene would lead to grave injustice or where justice might be attained by other means.
Trust
JR483/13
Metrorail (PRASA) v SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015)
Miyambo v CCMA and Others (2010) 31 ILJ 2031 (LAC) at para 13
Misconduct: computer password
JR2525/11
Emfuleni Local Municipality v SALGBC and Others (JR2525/11) [2015] ZALCJHB 356 (14 October 2015)
At most, the employee created a hint of doubt and the remote possibility that some other person committed the offence. But this was not sufficient in light of the standard of proof applicable in labour disputes. In Potgietersrus Platinum Ltd v CCMA and Others[3], the Court held that an arbitrator incorrectly applied the required standard of proof. The arbitrator accepted the remote possibility that persons other than the accused employee had committed the offence, thus superseding the greater probability that the employees had committed the offence.
Evidence constitutes a prima facie case of dishonesty against the employee. This then shifts the evidentiary burden to the employee. In the absence of a credible and probable explanation from the employee, the inference that the arbitrator can most reasonably draw is that the employee acted dishonestly and that the employer has discharged its onus.
Misconduct: Consuming food
JR2711/12
Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2711/12) [2015] ZALCJHB 385 (6 November 2015)
Consumption of food items. Employee tried to deceive the Commission by attempting to introduce false evidence and showing no remorse. Dismissal fair.
Misconduct: hiding the laptop in one of the fridges
JR715/13
Pick 'n Pay Hypermaeket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)
[17] On the question of substituting relief, I am satisfied that, on a balance of probabilities, the third respondent probably did admit to hiding the laptop in a fridge, and that the most probable reason for doing so was to remove it at a later stage. Accordingly, he was guilty of the misconduct he was charged with and dismissal was not an inappropriate sanction given the gross dishonesty involved, irrespective of the other mitigating factors. Such conduct is inherently destructive of the trust relationship.
Misconduct: gross misconduct in having taken a hamburger without permission
JR2493/2012
Engen Stargan (Pty) Ltd t/a Kroonvaal 1 Stop v NUMSA obo Ntoahae and Others (JR2493/2012) [2015] ZALCJHB 395 (13 November 2015)
It is clear to me that whatever rule was in place, it was more honoured in the breach than in the observance. I take note of the employees argument that, apart from Du Toits say-so, there was no clear evidence of a breakdown of the trust relationship between the parties and also, that the sanction of dismissal was too harsh in the circumstances
Misconduct
JR130/14
Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016)
Court: [23] In the present instance, there is no conceivable reason why race might justifiably have served as an identifier...Bester was not, as the commissioner suggested, benignly referring to a physical attribute in order to identify a certain person. Besters reference to Thomelang as a swartman was derogatory and racist.
CCMA Award: "I really do not see how such a phrase (referring to a physical attribute in order to identify certain person) could be classified as a racial remark. It would be similar to the situation where someone comes into the CCMA offices not knowing my name and then asking for me by stating the wit man who for instance parked next to the entrance gate."
At the core of these decisions is the decisive break that the Constitution represent from a past in which racism was institutionalised and legitimised (see S v Makwanyane & another[1995] ZACC 3;1995 (3) SA 391(CC)) and that racism in the workplace is not to be tolerated. In the course of her judgment, Gaibie AJ found that an utterance by an employee to the effect that we need to get rid of the whites was clearly and unequivocally racist in nature. To the extent that the employee dismissed for making this utterance had contended that the words ought necessary to be viewed in the context in which they were used, Gaibie AJ said the following, at paragraph 29 of her judgment: I disagree with this proposition. Words have their own meaning and do not necessarily require a context within which to acquire meaning. Depending on the words used, there may however be circumstances in which words may acquire a different meaning. I do not believe that the racist slur uttered by Ramepadi requires a context for the purposes of interpretation. Their plain meaning indicates racism. What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purposes of subjugation, where particular race groups continue to be viewed as other.
Modikwa Mining Personnel Services(2013) 34 ILJ 373 (LC)
(see, for example, Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & others(2002) 23 ILJ 863 (LAC),Lebowa Platinum Mines Ltd v Hill(1998) 19 ILJ 1112 (LAC))
Campbell Scientific Africa (Pty) Ltd v Simmers & others(CA 14/2014, 23 October 2015)
in the context of a case concerning remarks of a sexual nature made to a woman employee, the use of derogatory and demeaning remarks are concerned with power relations and serve to create a work environment where the right to dignity of employees is impaired, and barriers to substantive equality reinforced.
Misconduct
JR2744/11
MCC Group of Companies v Mokabane N.O and Others (JR2744/11) [2016] ZALCJHB 234 (10 February 2016)
The
Misconduct
JR2630/12
NUM obo Mogashoa v Commission for Conciliation, Mediation and Arbitration and Others (JR2630/12) [2016] ZALCJHB 62 (23 February 2016)
Dishonest conduct in that you must have been aware or noticed that 17 kg of gold was hidden: Applicant was at the very least probably aware of the concealment of the gold in the weights which most probably occurred when they were working on the weights that Sunday. Even if he was merely a bystander, his silence in not reporting the concealment of the gold made him complicit with the boilermaker who was dismissed arising from the incident. The strong circumstantial evidence against him was such that he needed to provide a plausible explanation why, notwithstanding that evidence, he was not a participant or would not have been aware of what was going on despite working together with the boiler-maker that day in the small workshop.
Misconduct
JR2195/14
SAMWU obo LUNGILE FELICIA vs CCMA
Distinguished between insolence (repudiation by an employee of his duty to show respect) and insubordination (refusal to obey an employer's instructions). Both forms of misconduct are properly embraced by the terms of 'insubordination' as used in Schedule 8 Code of practice: dismissal in the Labour Relations Act of 1995 ("the Code of good practice").
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19.
[t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers' authority.
Commercial Catering and Allied Workers' Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J.
Probation
JR64/2014
IBM South Africa (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration (CCMA) and Others (JR64/2014) [2016] ZALCJHB 151 (19 April 2016)
The employer has the right to test the employee in different situations and determine whether she is capable of coping with the rigours of permanent employment. If a probationary employee is found to be wanting on key aspects of the job description the employer is at liberty to follow its instincts and not appoint the employee permanently. These important but often intangible considerations are inherent in the context of less compelling reasons...The Court held that when dealing with a person on probation in a responsible position like a professional assistant, where the person claims to have the necessary experience to do the job, it is not unreasonable for the employer to simply point out the perceived shortcoming of the probationer and to emphasize the importance of improving her performance if she wants to be permanently employed.
Rheinmetall Denel Munition (Pty)(Ltd) v National Bargaining Council for the Chemical Industry and others (2015) 36 ILJ 2117 (LC).
The Arbitrator failed to adopt a holistic approach to the large body of evidence before her and failed to consider and place the Third Respondents performance and behaviour during her probationary period in its proper context. This Court dealt with the distinction to be drawn between a probationary employee appointed to a responsible position and a junior employee on probation
Misconduct
JR251/2011
Klaas and Another v Eskom Holdings Ltd and Others (JR251/2011) [2016] ZALCJHB 152 (19 April 2016)
Negligence in that it was alleged that he was negligent in the supervision of an apprentice under his charge, which resulted in a contact incident, which in turn resulted in a fatality.
I agree with her findings that the severe consequences of First Applicants lack of care broke the trust relationship and that the sanction of dismissal was indeed the appropriate one.
Misconduct
JA78/14
Metsimaholo Local Municipality v South African Local Government Bargaining Council and Others (JA78/14) [2016] ZALAC 1; [2016] 5 BLLR 435 (LAC) (3 February 2016)
moonlighting
the collective agreement, which was relied upon by the appellant, does not outlaw moonlighting. It expressly provides that employees had to apply for permission to do private work and it states that such permission shall not be unreasonably withheld.
Misconduct
CA13 /14
City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016)
Racism
without any justifiable cause, as being even [worse] than Verwoerd was an offensive racial insult,
SACWU and Another v NCP Chlorchem (Pty) Ltd and Others(2007) 28 ILJ 1308 (LC) at para 31; [2007] JOL 19526 (LC)
Sanction
CA13 /14
City of Cape Town v Freddie and Others (CA13 /14) [2016] ZALAC 8; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1364 (LAC) (15 March 2016)
Toyota SA Motors (Pty) Ltd v Radebe and Others [2000] 3BLLR 243 (LAC)
the fact of long service in employment does not always spare an employee, who committed a gross misconduct, from dismissal
Misconduct
JA119/14
Barloworld Logistics v Ledwaba N.O. and Others (JA119/14) [2016] ZALAC 17 (11 May 2016)
conducting a business without permission
no evidence led that employee conducting business using employers time and resources employee obtaining verbal permission from immediate superior
Misconduct: till shortages
JA38/15
Woolworths (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (JA38/15) [2016] ZALAC 41; (2016) 37 ILJ 2831 (LAC); [2017] 2 BLLR 137 (LAC) (27 July 2016)
The arbitrator (incorrectly) found that the dismissal of the employee was substantively unfair on the basis that the sanction of dismissal was too harsh under the circumstances. The arbitrator also found that the employees till takings discrepancy was not the result of any negligence on her part because the appellant could not find irregularities on the transactions of the employee.
Misconduct: existence of rule
JA45/2015
Dikobe v Mouton N.O. and Others (JA45/2015) [2016] ZALAC 30; [2016] 9 BLLR 902 (LAC); (2016) 37 ILJ 2285 (LAC) (15 June 2016)
The vagueness of a rule against possession
[19]The defence of the appellant, throughout all the proceedings, was that his possession of the vouchers was with Moloros express permission. The word possession is of course the word that a layman would use to describe the handling of the vouchers. Were the appellant aware of the term detentio, he would probably have denied being in possession and claimed he merely detained the vouchers as agent of Moloro.
insubordination and insolence
JA83/2015
Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
[17]Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions.[5]It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employers lawful authority.[6]It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employers authority even where an instruction has not been given.[7]
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (L.
Insolence: is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employers authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful
On final written warning
JA83/2015
Sylvania Metals (Pty) Ltd v Mello N.O. and Others (JA83/2015) [2016] ZALAC 52 (22 November 2016)
Transnet Freight Rail v Transnet Bargaining Council and others (2011) 32 ILJ 1766 (LC).
An employee on a final warning for the same offence will normally be regarded as irredeemable, and dismissal will be justified if the employee commits a similar offence during the currency of the warning Usually, the presence of a valid final written warning at the time the commission of the same or similar form of misconduct should be properly interpreted as aggravating in nature. The principles of progressive discipline require such a re-offending employee usually to be considered irredeemable I accept that the purpose of the warning is to impress upon the employee seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again.
Misconduct: refusal to perform night work
CA16/15
TFD Network Africa (Pty) Ltd v Singh N.O. and Others (CA16/15) [2016] ZALAC 50; [2017] 4 BLLR 377 (LAC); (2017) 38 ILJ 1119 (LAC) (8 November 2016)
Where the protective measures are not available to an employee required to perform night work, the employee is entitled to raise the absence of those measure as a defence to a charge of failing to work or disobeying an instruction.
Misconduct: failing to disclose record prior to appointment
CA2/2015
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55; (2017) 38 ILJ 881 (LAC) (25 November 2016)
Third respondent dismissed after 14 year’s service as security guard after it was discovered he failed to disclose his prior criminal convictions for rape and assault when applying for employment
Given the serious nature of the misconduct committed, the sanction of dismissal was fair. Appeal upheld with no order as to costs.
Misconduct: Absence
JR3104/12
National Nuclear Regulator v Commission for Conciliation, Mediation and Arbitration and Others (JR3104/12) [2016] ZALCJHB 177 (11 May 2016)
[105] It is clear that an employee who demonstrates a propensity for committing misconduct cannot escape the consequences of his or her conduct simply because a past warning has expired. Disciplinary action under the Labour Relations Act 66 of 1995, as amended, (LRA) is not a rigid process which fails to take into account the various parties interests.
National Union of Mineworkers obo Selemela v Northam Platinum Ltd (2013) 34 ILJ 3118 (LAC) at para 38; Gcwensha v CCMA and Others [2006] 3 BLLR 234 (LAC).
An employer or commissioner is always entitled to take into account the cumulative effect of previous acts of negligence, inefficiency and/misconduct. To do otherwise would be to subject and employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, failing outside the periods of applicability of final written warnings. The court found further that the final written warning will have added importance if the conduct to which it relates is of the same nature as the conduct the employee is subsequently charged with in the disciplinary enquiry.
Misconduct: Conflict of interest
JR1172/14
Browns the Diamond Store v Commission for Conciliation, Mediation and Arbitration and Others (JR1172/14) [2016] ZALCJHB 187 (13 May 2016)
[14]However, the reference to a possible conflict of interest in Phillips case must be understood in the context in which it is used. It refers to a situation where a person owing a fiduciary duty to another, in this case an employer, actually does act in their own interest in circumstances in which their interest might possibly conflict with that of their principal, but does not disclose the possible conflict of interest to the person to whom the fiduciary duty is owed before embarking on such action, or does so without that persons permission. The breach of the fiduciary duty does not occur because of the mere existence of a possible conflict but how the potentially conflicted individual acts when that situation arises.
Phillips v Fieldstone Africa (Pty) Ltd and another 2004(3) SA 459
which an employee accepted an offer of shares in a client of his employer without advising his employer or obtaining its consent, which the court held amounted to him succumbing to the potential conflict of interest between his duty and his self-interest. It was also suggested that the mere possibility of a conflict of interest was sufficient to warrant the employer taking action, on the strength of the authority of that case. In enumerating what might constitute a conflict of interest, the SCA held It extends not only to actual conflicts of interest but also to those which are a real sensible possibility.
Misconduct sexual harassment
JR1025/2013
Masemola v Commission for Conciliation, Mediation and Arbitration and Others (JR1025/2013) [2016] ZALCJHB 183 (17 May 2016)
sexual favour in exchange for the Applicant deleting nude pictures
Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 1 BLLR 1 (LAC).
Misconduct: leaving his vehicle unattended with a costly consequence to his employer
JR2720/13
Freshmark (Pty) Ltd v Matji N.O. and Others (JR2720/13) [2016] ZALCJHB 477 (20 May 2016)
the probabilities are overwhelming that the employee simply failed to exercise his supervisory obligations and that the pallet of fresh produce was returned to Centurion as a consequence, at a loss to the applicant. In both instances, there is no evidence on record that serves to exculpate the employee on the basis of the inconsistent application of discipline.
Misconduct: Right to privacy
JR1022/12
NUMSA and Another v Rafee N.O. and Others (JR1022/12) [2016] ZALCJHB 512; [2017] 2 BLLR 146 (LC) (31 May 2016)
failure to delete photos of the company from his mobile phone
[13]The applicants rightly contend that in the employment context, the competing interests of employees rights to privacy have to be weighed against the employers right to protect its business interests.
Dismissal fair
Misconduct: same charge as during disciplinary hearing
JR 1099/13
South African Municipal Workers Union and Another v Ngaka Modiri Molema District and Others (JR 1099/13) [2016] ZALCJHB 257; (2016) 37 ILJ 2430 (LC) (7 July 2016)
commissioner (not having) license to craft a charge that will justify a dismissal.
Misconduct: tested positive for being under the influence of drugs
JR232/2013
Modiba v Samancor Eastern Chrome Mine and Others (JR232/2013) [2016] ZALCJHB 275 (22 July 2016)
reliability of the equipment used to test the presence of cannabis
Commissioner failed to appreciate the incidence of onus in relation to the authenticity of the test and reliability of the equipment
Misconduct: failed and/or refused to comply with a lawful instruction
J1343/16
Solidarity and Others v South African Broadcasting Corporation (J1343/16) [2016] ZALCJHB 273; 2016 (6) SA 73 (LC); (2016) 37 ILJ 2888 (LC); [2017] 1 BLLR 60 (LC) (26 July 2016)
unlawful summary dismissal, dismissals in breach of contractual right to disciplinary procedure and in breach of right to freedom of expression, dismissals void ab initio
to dismiss SABC journalists for criticising the Protest Policy and in suspending them, amounts to conduct by SABC management which is plainly in breach of section 16(1) of the Constitution, and it is conduct in respect of which the Labour Court, in the exercise of its concurrent jurisdiction with the High Court under s157(2) of the LRA, can make an appropriate order in terms of s 158(1).
Misconduct: FRAUDULENT NON- DISCLOSURE, ALTERNATIVELY, MISREPRESENTATION, FURTHER ALTERNATIVELY FAILURE TO ACT IN THE BEST INTERESTS OF THE EMPLOYER
JR2946/2010, J494/13
Industrial Development Corporation of South Africa Limited (IDC) v Roscher and Others (JR2946/2010, J494/13) [2016] ZALCJHB 292 (2 August 2016)
Absa Bank Ltd v Naidu and Others [2015] 1 BLLR 1 (LAC) at paras 42-56.
[53] In De Beers Consolidated Mines Ltd, above, the Court further pointed out that [t]he seriousness of dishonesty ie whether it can be stigmatised as gross or not depends not only, or even mainly, on the act of dishonesty itself but on the way in which it impacts on the employers business. In the present instance, considering the nature of the appellants business, there can be no doubt, in my view, that Ms Naidus dishonesty severely adversely impacted on the business.
[55] On the issue of breakdown in trust relationship, occasioned by an employee’s dishonest misconduct, this Court (per Davis JA) in Shoprite Checkers (Pty) Ltd v CCMA and others, stated the following:
[T]his Court has consistently followed an approach, laid out early in the jurisprudence of the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 (LC) at paragraphs 3841 where Tip AJ said:
It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
Temporary employment service
JR672/15
Wood Group (South Africa) (Pty) Ltd v Ngobeni N.O. and Another (JR672/15) [2016] ZALCJHB 321 (23 August 2016)
Termination of contract: "In line with the Temporary Employment Contract entered into, we are accordingly terminating your services with LBJ Global Recruitment (Pty) Ltd[2] on the same date, to be viewed as completion of contract. In the interim, we will endeavour to secure an alternative assignment for you and will communicate with you should we be successful in this regard.
NUMSA v Abancedisi Labour Services [2014] 2 All SA 43 (SCA); [2013] 12 BLLR 1185 (SCA).
In that case, a labour brokers client refused the workers entry to the workplace. The labour broker argued that it had not dismissed them. The SCA held that they were dismissed when they were barred from the workplace by the client and that the labour broker had dismissed them as contemplated in s 186(1)(a) of the LRA.
insubordination and insolence
JR2195/14
SAMWU obo Felicia v Commission for Conciliation, Meditation and Arbitration and Others (JR2195/14) [2016] ZALCJHB 338 (26 August 2016)
meeting in which her performance was to be discussed
"a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer's authority."
Polyoak Packaging (Pty) Ltd v Siquibo NO and Others (unreported) case number 236/2008
As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer's lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place:
[a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place;
[b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly,
[c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal.
Grogan, in Employment Law, [J Grogan Workplace: Juta (11th edition) at pages 251-255.] states the following
The best measure of the gravity of insubordination and/or 'insolence' is the effect it has on the employment relationship. Other things being equal, an isolated refusal to carry out an instruction is less likely to destroy the relationship between the employer and the employee than sustained and deliberate defiance of authority. The latter form of insubordination is well illustrated by Theewaterskloof Municipality v SALGBC (Western Cape Division). The Labour Court held that a senior manager who accepted payment of an allowance well knowing that he was not entitled to it, then offered to repay the amounts in derisory instalments, had deliberately breached the trust relationship. Given the destruction of the employment relationship and his total lack of remorse, the employee could not rely on either the general right to progressive discipline or on his long and previously unblemished service record. The court upheld the employee's dismissal.
Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC) at para 19
The Labour Appeal Court held that [t]he offence of insubordination in the workplace has, in this regard, been described by the courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to an employers' authority and in that regard, the Labour Appeal Court referred to the decision of Commercial Catering and Allied Workers' Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC) at 314H-J.
Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC
"the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee's conduct poses a deliberate (wilful) and serious challenge to the employer's authority
Bringing name into disrepute
JR2600/13
Maloka v Commission for Conciliation, Mediation and Arbitration and Others (JR2600/13) [2016] ZALCJHB 343 (31 August 2016)
Bringing SARS name into disrepute, conduct he was involved impacted on SARS name and reputation. ..not a requirement for the purposes of the charge in question for the Applicant to have made a public statement or issued a statement about SARSs activities, nor was it necessary for evidence to be led to demonstrate that indeed a conviction resulted from the conduct in question. This narrow interpretation of the charge of bringing a company’s name into disrepute in circumstances where an employee commits misconduct outside of working hours cannot be sustainable in the light of the above authorities and principles set out therein. The Applicants mere conduct in this case, considering the nature of his job and the business of SARS was sufficient for the charge to be sustained.
his conduct showed that he intended to involve himself in illegal activities by participating in rhino horn trading...t needs to be added that the conduct of the Applicant, but for the fact that the horn turned out to be that of a cow, bordered on criminality and involved dishonesty and corruption. Such conduct clearly had an impact on the employment relationship, especially in the light of his position as a law enforcement officer. Even more profound in this case was the Applicants dishonesty throughout the arbitration proceedings, with contrived and improbable versions, intended to mislead the Commissioner.
Dolo v Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 905 (LC) at paragraph [19]
The applicant contends she committed no wrong against her employer. This is correct: her involvement in the fraudulent scheme did not concern any non-performance of her duties or other act of misconduct in the workplace. However, being a party to such a scheme held implications for her suitability to occupy a position in which she was entrusted to deal with the employers cash when her job required it. The first principle a person who is determining whether or not a dismissal for misconduct is unfair must consider in terms of Item 7(a) of the Code of Good Practice: Dismissal is whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace (emphasis added). What the emphasized portion makes clear, is that misconduct outside the workplace and outside of working hours may have a bearing on an employees continued suitability for employment. In each instance, a multiplicity of factual considerations can determine whether the employees conduct outside the workplace holds implications for their continued suitability for employment or some form of corrective discipline. In Hoechst (PTY) Ltd v Chemical Workers Industrial Union & Another (1993) 14 ILJ 1449 (LAC), Joffe JA (as he then was), held:
1. Where misconduct does not fall within the express terms of a disciplinary code, the misconduct may still be of such a nature that the employer may none the less be entitled to discipline the employee. Likewise the fact that the misconduct complained of occurred away from the work-place would not necessarily preclude the employer from disciplining the employee in respect thereof... In our view the competence of an employer to discipline an employee for misconduct not covered in a disciplinary code depends on a multi-faceted factual enquiry. This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer's size, the nature and size of the employer's work-force, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the work-force as a whole, as well as on the relationship between employer and employee and the capacity of the employee to perform his job. At the end of the enquiry what would have to be determined is if the employee's misconduct 'had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties'. (Authorities omitted)
Misconduct: received money from members of the public
JR859/2013
Minister of Justice and Constitutional Development v PSA obo Mahlangu and Others (JR859/2013) [2016] ZALCJHB 350 (14 September 2016)
to place an employee who was guilty of dishonesty back in a position where honesty and integrity were paramount, would be outrageous and would amount to condoning his misconduct.
Misconduct: dishonesty
JR999/2014
Arcelormittal South Africa Limited v Pretorius and Others (JR999/2014) [2016] ZALCJHB 351 (14 September 2016)
Nedcor Bank Ltd v Frank and others (2002) 23 ILJ 1243 (LAC).
Dishonesty entails a lack of integrity or straightforwardness and, in particular, a willingness to steal, cheat, lie or act fraudulently.(See Toyota SA Motors (Pty) Ltd v Radebe and others (2000) 21 ILJ 340 (LAC) at 345F-H; R v Brown 1908 TS 21; R v White 1968 (3) SA 556 (RA); Ex parte Bennett 1978 (2) SA 380 (W) at 383H-384C; S v Manqina; S v Madinda 1996 (1) SACR 258 (E) at 260e-h and The Oxford Dictionary.)In the Canadian case of Lynch and Co v United States Fidelity and Guaranty Co [1971] 1 OR 28 (Ont SC) at 37-38, the following was said (per Fraser J):"Dishonest" is normally used to describe an act where there has been some intent to deceive or cheat. To use it to describe acts which are merely reckless, disobedient or foolish is not in accordance with popular usage or the dictionary meaning. ‘Certainly, insofar as the appellant or its customers are concerned, no intention to steal, cheat, lie or act fraudulently is manifest. And what of the intention to conceal the true state of affairs from the management of the airport? That is not covered by the charge.
44]The Court further held that dishonesty implies intention on the part of the employee and negligence cannot give rise to a charge of dishonesty.
Failure to allow employee to return to work
JS787/14
Smith v Kit kat Group (Pty) Ltd (JS787/14) [2016] ZALCJHB 362; [2016] 12 BLLR 1239 (LC); (2017) 38 ILJ 483 (LC) (23 September 2016)
Failing to allow the applicant to return to work, in the circumstances of this matter, is tantamount to termination of employment.
[53]In summary, and based on what I have set out above, I have little hesitation in concluding that the conduct of the respondent, considered as a whole, was of the nature that seeks to bring about the termination of the employment relationship, and is certainly a repudiation of the employment contract of the applicant. This conduct includes representing to the applicant that he was welcome to return to work when this was in reality not the case, refusing his tender of work when it was first made, seeking to persuade him to pursue a disability claim, telling him that he is cosmetically unacceptable and his presence traumatizes the other employees, informing him that he unable to do his full work without conducting any process to determine this, and suggesting that he leave whilst ignoring the medical reports that the applicant was fit to work, and finally seeking to negotiate his exit. The applicant was entitled to consider the employment relationship as terminated, which he ultimately did by the time this matter came to trial.
Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC) at para 36. See also Ismail v B & B t/a Harvey World Travel Northcliff (2014) 35 ILJ 696 (LC) at paras 27 28.
the Court dealt with a situation where an employee on the evidence was never informed that she had been dismissed, and said: by definition the existence of a dismissal can be established by conduct. An objective assessment of the evidence must be made in order to establish whether the conduct of the employer is such as to establish a termination of the employment contract, be it with or without notice.
Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC) at para 14
Section 186(1)(a): This formulation would appear to contemplate that the employer party to the contract of employment undertakes an action that leads to the termination. In other words, some initiative undertaken by the employer must be established, which has the consequence of terminating the contract, whether or not the employer has given notice of an intention to do so.'
Marneweck v SEESA Ltd (2009) 30 ILJ 2745 (LC) at para 31.
as a matter of principle, an employment contract can be regarded as terminated based on the objective construction of the employer's conduct which unequivocally repudiates the contract.
Heath v A & N Paneelkloppers (2015) 36 ILJ 1301 (LC) at para 31.
[15] Where the employer conducts itself in such a fashion that has the cause of bringing the employment relationship to an end, it must equally be considered to be a dismissal.[16] the question to answer is whether there were some overt actions by the respondent as employer that were the proximate cause of such termination of employment of the applicant on 1 February 2012. The applicant has the onus to show this. In answering this question, regard must not just be had to what happened on that day, but all the circumstances leading up to the events on that day must also be considered. In short, did the respondent seek to repudiate the employment contract
Probation
JR1303/2014
Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016)
Plane Engineering (PTY) Ltd v Ncobo & others (2014) 35 ILJ 1971 (LAC).
even though less onerous reasons can be accepted for dismissing a probationary employee, the fairness of such reasons still needs to be tested against stipulations of items 8(1) (a)-(h) of the code of Good Practice.
misconduct: reporting late for work
JR1303/2014
Imagex (Pty) Ltd v Krustinsky and Others (JR1303/2014) [2016] ZALCJHB 371 (29 September 2016)
[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.
misconduct: incitement of violence, acting against her employers best interests, conduct unbecoming an official, and a conflict of interest
JR241/14
Bokoni Platinum Mines (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR241/14) [2016] ZALCJHB 524 (6 October 2016)
Was not as a result of illegal strike.
Dismissal fair
misconduct: tested positive for using marijuana
JR286/15
Diesel Supply and Logistics (Pty) Ltd v Skhosana and Others (JR286/15) [2016] ZALCJHB 525 (14 October 2016)
the arbitrators finding that the applicant had failed to call medical expert evidence, I fail to appreciate, in circumstances where the authenticity of the test and its use in the industry was never seriously disputed by the employees representative, how such a finding can be made. To the extent that the arbitrators finding is based on his intervention when he asked Muller why the employer not been sent to a medical facility, that question had as its purpose the ability for medical experts to test for a whole range of drugs. Given that the integrity of the test administered had not been called into question and that the test itself was capable of testing for the presence of a number of other drugs (which was never disputed) there is no basis on which the arbitrator could reasonably rely on make a finding he did.
misconduct: grossly negligent: drove well over the speed limit,
C420/2015
IMATU obo Cupido v City of Cape Town and Others (C420/2015) [2016] ZALCJHB 421 (2 November 2016)
Dismissal fair
misconduct: deliberate tripping co-employee
J768/15
Minister of Finance v Bredenkamp and Others (J768/15) [2016] ZALCJHB 431 (11 November 2016)
this should be regarded as serious misconduct. This was a deliberate assault by a senior on a subordinate, aggravated by the circumstances in which it took place.
Misconduct: failed and/or refused to comply with a lawful instruction
JR261/13
Ngululu Bulk Carriers (Pty) Limited v SATAWU and Others (JR261/13) [2016] ZALCJHB 440 (29 November 2016)
A wilful refusal to carry out a proper assignment for which the employee was employed for
Second Respondent's dismissal was fair
Misconduct: Negligence with aggravating circumstances
JR1907/14
Glencore Operations South Africa (Pty) Ltd v NUM obo Mtshwene and Others (JR1907/14) [2016] ZALCJHB 567 (1 December 2016)
Negligence with aggravating circumstances in that you failed to ensure the proper installation of the refractory lining, resulting in the company losing substantially on finance and production...employee is by far the senior employee between the two and was ultimately responsible and liable for the work performed by his subordinates.
Misconduct: defied an instruction by his supervisor to take his lunchbreak at a particular time
JR438/13
Bader SA (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR438/13) [2016] ZALCJHB 550 (20 December 2016)
[16]As I have already said, where an element of dishonesty is attached to a particular act of misconduct (in this case insubordination), it goes to the heart of the employment relationship. The question then in these circumstances is whether the trust element essential for any employment contract to endure, has been irretrievably breached.
misconduct: act of defiance amounting to a refusal to obey an instruction
JR2684/13
Sibanye Gold Ltd (Driefontein Mine) v Commission for Conciliation, Mediation and Arbitration and Others (JR2684/13) [2017] ZALCJHB 191 (1 March 2017)
respondents dismissal was substantively and procedurally fair.
misconduct: contravention of the National Road Traffic Act 93 of 1996 by exceeding the speed limit
JR557/14
Wadeville Secure (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR557/14) [2017] ZALCJHB 85 (3 March 2017)
matter is remitted to the first respondent to be heard de novo
misconduct: refused to carry out those instructions
JR759/12
Mphahlele v Coreslab (JR759/12) [2017] ZALCJHB 130 (12 April 2017)
was at the time sitting with a final written warning for a similar misconduct...order that the dismissal was fair.
misconduct: they went to the house of a fellow employee, intimidated him to join the strike
JR696/15
Bidvest Food Services (Pty) Ltd v CCMA and Others (JR696/15) [2017] ZALCJHB 210 (31 May 2017)
dismissal of the Third Respondents was substantively and procedurally fair.
proof
JS318/13
National Union of Mine Workers obo Shayi and Others v Sishen Iron Ore Company (Pty) Ltd (JS318/13) [2017] ZALCJHB 271 (30 June 2017)
[18] It is trite that in dismissal proceedings, the onus rests with the employees to establish and prove that they were dismissed. On the other hand, the employer has to demonstrate and/or show that the dismissal was fair. In general, this means that the Applicants must prove that the Respondent has taken some initiative to terminate the contract, and that the Respondents action has caused the termination.
Ouwehand v Hout Bay Fishing Industries [2004] 8 BLLR 815 (LC); See also CWIU v Johnson and Johnson (Pty) Ltd [1997] 9 BLLR 1186 (LC)
misconduct: dishonesty
JR1671/16
Kellogg Company South Africa Proprietary Limited v Food and Allied Workers Union obo Khumalo and Others (JR1671/16) [2017] ZALCJHB 268 (6 July 2017)
The Constitutional Court in the matter of Sidumo & another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC).
In the respect of the absence of dishonesty, the Labour Appeal Court found that the Commissioners statement in this regard baffling. In my view, the Commissioner cannot be faulted for considering the absence of dishonesty a relevant fact in relation to the misconduct. However, the Commissioner was wrong to conclude that relationship of trust may have not been breached. Mr Sidumo was employed to protect the mine valuable property which he did not do. However, this is not the end of the enquiry. It is still necessary to weigh all the relevant factors together in light of the seriousness of the breach.
The absence of dishonesty is a significant factor in favour of the application of progressive discipline rather than dismissal.[11] (Own emphasis)
misconduct: dishonesty
DA08/16
Workforce Group v McLintock and Others (DA08/16) [2017] ZALCJHB 272 (1 August 2017)
Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC)
Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38.
It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
misconduct: insubordination
JR967/14
Cashbuild Thohoyandou v Mannde NO and Others (JR967/14) [2017] ZALCJHB 284 (8 August 2017)
Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC)at para 22
Even so, it is however trite that acts of insolence and insubordination do not automatically justify dismissal unless they are serious and wilful
misconduct: misrepresenting qualifications in CV
JR1289/14
LTE Consulting (Pty) Ltd v Commission for Conciliation, Meditation and Arbitration and Others (JR1289/14) [2017] ZALCJHB 291; [2017] 12 BLLR 1259 (LC) ; (2017) 38 ILJ 2787 (LC) (8 August 2017)
Employee misrepresenting qualifications in CV commissioners finding that employees dismissal substantively unfair unreasonable award set aside on review employees dismissal determined as having been fair
Department of Home Affairs & another v Ndlovu & others (2014) 35 ILJ 3340 (LAC)
In any event, accepting that such a qualification was not a requirement for the job, this does not detract from the employees dishonesty in misrepresenting that he was a chartered accountant.
G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO & others(2017) 38ILJ881 (LAC)
[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.
misconduct: fighting
JR1756/2015
Arcelor Mittal SA Ltd v Metal and Engineering Industries Bargaining Council and Others (JR1756/2015) [2017] ZALCJHB 295 (11 August 2017)
Ultimately, the evidence clearly shows that the third respondent did everything in his powers to evade a fight. The second respondent seems to have correctly understood the fundament rules of evidence including the principles governing mitigation and probabilities.
misconduct: insubordination
JS752/13
Rahn v Cheil South Africa (Pty) Ltd (JS752/13) [2017] ZALCJHB 319 (5 September 2017)
Palluci Home Depot (Pty) Ltd v Herchowitz and Others [2015] 36 ILJ 1511 (LAC) at para 22
. . . [A]cts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful. The failure by an employee to comply with a reasonable and lawful instruction of an employer or an employee’s challenge to or defiance of the authority of the employer may justify dismissal, provided it is wilful (deliberate) and serious. Likewise, insolent or disrespectful conduct towards an employer will only justify dismissal if it is wilful and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination as respect and obedience are implied duties of an employee under contract law, and any repudiation thereof will constitute a fundamental and calculated breach by the employee to obey and respect the employers lawful authority over him or her.
misconduct: failed to follow safety rules by allowing two employees to put their heads into a class B (high risk) vessel, potentially containing lethal gases,
JR1900/14
Sasol Synfuels v NBCCI and Others (JR1900/14) [2017] ZALCJHB 356 (20 September 2017)
[14] ...The only reasonable conclusion to be reached on the evidence is that the third respondent committed the act of misconduct with which he was charged, and that in terms of the applicable policy, dismissal was the appropriate penalty. The third respondent contravened a safety code and endangered the lives of two contractors. The award accordingly stands to be reviewed and set aside.
misconduct: failed to immediately report it to the safety manager
JR2355/14
National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2355/14) [2017] ZALCJHB 359 (21 September 2017)
[22]In considering whether or not dismissal was an appropriate sanction, the arbitrator considered that the rule was introduced as a result of numerous fatalities at the mine and that it was an extraordinary measure taken by the CEO in an attempt to deal with a difficult situation and to prevent the loss of further lives. He found that a tip area that was not barricaded was dangerous as employees could fall into the opening and had the CEO known of the opening of the tip area, he could have intervened immediately and ordered that the area be secured without further delay. The employee was a safety officer and in light of the fatalities at the workplace, he did not act in the best interests of the employer at the time. The arbitrator accepted that the trust relationship has broken down and cannot be resuscitated.
Strike: no hearing
JA36/16
SACCAWU obo Mokebe and Others v Pick 'n Pay Retailers (JA36/16) [2017] ZALCJHB 345 (26 September 2017)
[52] The union, in the current matter, had obtained a certificate of outcome in terms of s64(1)(a) of the LRA and it had issued a strike notice in terms of s64(1)(b) thereof. This, in my view, rendered it fair and appropriate for the company to hold a disciplinary hearing where individual participation was allowed for primarily two reasons. The first was to ascertain each employees understanding of what the correct time of the commencement of the strike was. And the second was to establish whether he or she was knowingly complicit in the purported scheme to cause damage to the company. As it turns out, the company failed to adhere to the process that it specifically undertook to follow in the disciplinary notice which it issued to employees. This rendered each of the employees dismissals procedurally unfair.
Modise and Others v Steves Spar Blackheath [2000] 5 BLLR 496 (LAC)
The last observation relates to the conclusion that it would have been a pointless and an unnecessary exercise for the employer in G.M. Vincent to afford the strikers a hearing. My difficulty with this conclusion is that this was a case where the union had taken various steps prescribed by the old Act for making a strike legal... Indeed, it appears from the judgement of the industrial court in the same matter that, when the matter was argued in the industrial court, it was the unions case that it (and, a fortiori, the strikers) believed that the strike was legal (see NUMSA V G.M. Vincent Metal Sections (Pty) Ltd (1993) 14 ILJ 1318 (IC) at 1320J-1321A)... In those circumstances I cannot, with respect, see how it could be said that a hearing would have been a pointless and an unnecessary exercise in such a case.
The Court went on to hold that:[10]
The need for the respondent to hear the appellants was arguably even stronger in this case because this was a case where, to the knowledge of the respondent, certain steps had been taken by the union which were obviously aimed at making the strike a legal strike. The respondent should have realised that, because such attempts had been made, the strikers could well have been under the impression that the strike was legal and, that, for that reason, they might have believed that they were entitled to go on strike and even to ignore any calls by the respondent that they return to work. Although the appellants strike was illegal, they should not, in my judgement, be treated in the same way as strikers who simply flouted the Act and made no attempts whatsoever to comply with it. They deserve some sympathy. Workers must be encouraged to comply with the law. To treat them as if they fall into the same category as strikers who go on a strike without any attempt at all to make their strike legal would not be right. It would not encourage unions and workers to make whatever attempts they can to ensure that their strikes are legal.
misconduct: intoxicated on duty
JR790/15
Van der Merwe v Shiba and Others (JR790/15) [2017] ZALCJHB 354 (27 September 2017)
Commissioners may find sanction harsher than the one prescribed in the disciplinary code appropriate when there is evidence justifying deviation from the prescribed sanction. Absent evidence, the commissioners decision that the harsher sanction is appropriate is unreasonable and defective
[7] It is common cause that disciplinary codes are guidelines and not cast in stone. It is further common cause that the third respondent differentiates between dishonesty and gross dishonesty. The former is punishable by a written warning and the latter by dismissal. It is further common cause that the applicant was dismissed for dishonesty. The commissioner was therefore required to determine whether the third respondents conduct of dismissing the applicant for dishonesty was fair. The applicant made himself guilty of dishonesty. The third respondent conceded that aggravating circumstances should exist before a sanction harsher than the one prescribed in its code could be justified. It was submitted on behalf of the third respondent that aggravating circumstances could be inferred from evidence.
Absent aggravating circumstances, the decision that the dishonesty led to an irretrievable breakdown of the employment relationship between the parties is unreasonable. The commissioner erred in finding the sanction of dismissal appropriate. His error had the effect of rendering his decision unreasonable. The application must, in the circumstances, succeed.
misconduct: failed and or refused to undergo a Medical Examination
JR2354/15
Steval Engineering (Pty) Ltd v Mphaphuli N.O, and Others (JR2354/15) [2017] ZALCJHB 358 (27 September 2017)
The commissioner found that the charge was that the applicant did not comply with the respondents instruction when in fact the opposite was true. He concluded that the charge had no basis in law. He added that even if the third respondent had committed the misconduct, the sanction of dismissal would have been inappropriate as the prescribed penalty in terms of the Site Specific Agreement was a final written warning. He found the dismissal substantively unfair.
In Pharmaco Distribution (Pty) Ltd v Lize Elizabeth Weideman[3] it was held that the consent to medical examination in a contract of employment does not constitute justification as contemplated in section 7 (1) of the EEA. The applicant did not establish that the award falls outside the bounds of reasonableness.
misconduct: negligence
JR929/15
Netshisaulu v Commission for Conciliation, Mediation and Arbitration and Others (JR929/15) [2017] ZALCJHB 366 (28 September 2017)
commissioner misconstruing misconduct as gross negligence and upholding sanction of dismissal when employee guilty of ordinary negligence award reviewed and set aside and substituted with an order that dismissal unfair and employee reinstated on a written warning
[33] But in order for this to warrant dismissal, it would have to be determined that the applicant was grossly negligent, because negligence per se does not warrant dismissal[9] (just like insubordination per se and insolence does not[10]). In argument, Mr Ramdaw (who appeared for Eskom) submitted that ordinary negligence warrants dismissal, and undertook to provide me with authorities in support of this proposition. Having studied the list of authorities subsequently submitted by him, I am fortified in my view that only gross (or grave) negligence warrants dismissal.
Transnet Ltd t/a Portnet v Owners of The MV Stella Tingas and Another: MV Stella Tingas 2003 (2) SA 473 (SCA) at para 7.
It follows, I think, that to qualify as gross negligence the conduct in question must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care. If something less were required, the distinction between ordinary and gross negligence would lose its validity.
Grogan Dismissal (2nd ed) at 246.
To warrant dismissal at first instance, negligence by an employee must be gross. Gross negligence may be said to have occurred if the employee is persistently negligent, or if the act of omission under consideration is particularly serious in itself. While in civil law the term gross negligence has a technical meaning, in employment law it can be taken to mean negligence that is particularly inexcusable.
incapacity: ill health
JR1524/2015
Exarro Coal (Pty) Ltd t.a Grootgeluk Coal Mine v Maduma and Others (JR1524/2015) [2017] ZALCJHB 348; (2017) 38 ILJ 2531 (LC) (29 September 2017)
incapacity ill health cause and nature of lung disease undetermined at time of dismissal failure to determine same affected substantive and procedural fairness of dismissal despite employees inability to perform his current occupation at the time
[11] The arbitrator found that the employer had conceded in the arbitration that even though a post of a buyer was at a higher level (Maduma was employed at level P4 and the position of a buyer was level A3 which was one level higher), Maduma had previously acted in such a position (when he was working for another associated business unit) Maduma contended that he had never been made aware of vacancies available at the employer during the incapacity meetings. However, he believed he could perform the duties of a team assistant (a clerical post situated in the warehouse on the same post level occupied by Maduma at the time) or those of a receiving clerk. He saw no reason why an arrangement could not have been made to transfer him to an associated business unit of the Exarro Company in the same way that he had previously been transferred from another associated company to the applicant.
[16] In dealing with the procedural fairness of the dismissal the arbitrator found, in the absence of obtaining a final medical report, that the incapacity meetings convened by the employer were meaningless and it was merely going through the motions of conducting a proper procedure. As such, the employer had not complied with the code on incapacity hearings which provides that the employees prognosis and the extent to which the employee is capable of performing work should be discussed before dismissal is considered. Consequently, the arbitrator found the dismissal was also procedurally unfair.
General Motors (Pty) Ltd v National Union of Metalworkers of SA on behalf of Ruiters (2015) 36 ILJ 1493 (LAC)
[34]... In IMATU obo Strydom v Witzenberg Municipality & others, this court (per Molemela AJA, as she then was) stated:
[7] I must mention that I have no doubt in my mind that permanent incapacity arising from ill-health or injury is recognized as a legitimate reason for terminating an employment relationship and thus an employer is not obliged to retain an employee who is permanently incapacitated if such employee's working circumstances or duties cannot be adapted. A dismissal would under such circumstances be fair, provided that it was predicated on a proper investigation into the extent of the incapacity, as well as a consideration of possible alternatives to dismissal.
[8] The aforementioned obligations of the employer as set out in items 10 and 11 of schedule 8 to the LRA are interrelated with similar obligations in the Employment Equity Act 55 of 1998. In their work Employment Equity Law (2001) 7-3 to 7-4, J L Pretorius et al submit that the duty of reasonable accommodation of employees by employers is not confined to the Employment Equity Act but "is a duty that is implied in the concept of unfair discrimination in a general sense" and "is one of the judicial and legislative tools for realising substantive equality". I agree with this submission. Surely non-compliance with such an important constitutional imperative would not only impact on procedural fairness but on the substantive fairness of the dismissal as well?
[9] I am of the view that the provisions of items 10 and 11 are inextricably tied and thus non-compliance therewith would render a dismissal both procedurally and substantively unfair.' [2]
misconduct: gross negligence
JR2224/15
Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)
gross negligence for failing to verify that merchandise properly returned before authorising refund
[13]Once it is accepted that the employee was given on-the-job training (or that the commissioners finding to that effect was reasonable), then it seems to me that a finding (implicitly made by the commissioner) that the employee was grossly negligent on 21 February 2015 is also not unreasonable. In effect, the employee was guilty of a dereliction of her duties, such as to qualify as gross negligence.
on the basis of supervening impossibility of performance
JR664/15
Swissport SA (Pty) Ltd v Seanego and Others (JR664/15) [2017] ZALCJHB 371 (10 October 2017)
1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure.
FAWU obo Meyer v Rainbow Chickens [2003] 2 BALR 140 (CCMA)
it was held that the dismissal of a chicken slaughterer who could not perform his duties after his accreditation to slaughter was withdrawn by the Muslim Judicial Council was justified
SA Private Security Workers Union on behalf of Nomavila and Bosasa Operations (Pty) Ltd (2016) 37 ILJ 2172 (CCMA)
[27] I am satisfied that the matter before me involves incapacity through a permanent impossibility of performance as a result of a supervening factor such factor not being caused or created by either the employee or the employer.
1. The award of the Fourth Respondent under case number GAEK9038-14 is reviewed and set aside and replaced with an order that the dismissal of the First and Second Respondents was for a fair reason and in compliance with a fair procedure.
Making a secret profit at the expense of the employer
JR810/15
NTM obo Tunyiswa v Commission for Conciliation, Mediation and Arbitration and Others (JR810/15) [2017] ZALCJHB 374 (10 October 2017)
The South African Law of Evidence Zeffertt and Paizes 2nd Edition at p 48
[13] The Second Respondent was enjoined to apply the civil standard of proof to the conflicting versions by considering the force, strength and weight of the evidence. Where the quantum of proof requires a preponderance or balance of probability, it means that the probability of the truth of a particular averment is measured or balanced against the probability of it being untrue.
[14] The evidence was overwhelmingly in favour of the Third Respondents case that the Applicant was guilty of lending money to Magaboya at an exorbitant interest rate.
misconduct: failed to communicate your intended absence
JR993/14
UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017)
[21] The next issue is whether the dismissal of the first respondents was fair.
[22] The applicant submitted that the first respondents were on final written warnings at the time of the offence. It however failed to establish with reference to the record of evidence that the warnings were for a similar offence. The warnings thus have no bearing on whether the dismissal was fair.
[23] In my view, considering the first respondents did attempt to comply with a written rule, it is arguable that they should have received a severe sanction short of dismissal.
misconduct: assault: Self-defence
JR52/15
JDG Trading Pty Ltd t/a Barnetts v Mthukwane N.O. and Others (JR52/15) [2017] ZALCJHB 504 (25 October 2017)
The Third Respondent assaulted a member of public in the Applicants shop. The Second Respondent found that the Third Respondent acted in self-defence. The award set aside as the Second Respondent misapplied the principle of self-defence. However, Self-Defence can still be successfully pleaded in the employment context and should not be equated with a brawl.
[23] I disagree. Self-defence once proven constitutes a basis of exonerating an employee at the work place. It is a complete defence. Such a defence is still applicable in our labour jurisprudence. Exonerating an employee on self-defence but continue finding him guilty for being involved of a brawl negates the very protection of self-defence available to an attacked employee. Regard should be had that if the defence could have been avoided, then such would no longer constitute self-defence but an attack. The requirements of self-defence are trite. I intend not dissect the rest of the requirements that must be proven for self-defence to be sustainable.
[24] In this case I deliberately started the focus on whether or not the Third Respondent exceeded the bounds of self-defence. Obviously to start at this level means I have given, only for purposes of this argument, a benefit to the Third Respondent that Cynthia started the fight. It will come to the fore somewhere in this judgment that such a benefit was also quite generous.
[25] Self-defence can be exceeded and it is on this aspect that I need to find out if the commissioner properly dealt with. It is trite law that where a defender uses more force that is reasonably necessary to repel an attack, the defender would be guilty of assault on the attacker and the defender would not be able to rely on self-defence
Rustenburg Platinum Mines Limited v Mwachanda JR 2283/09, Delivered 10 April 2014 (Wilken AJ)
misconduct: driving at high speed
JR2512/13
Lekoba v Smollan Cape (Pty) Ltd and Others (JR2512/13) [2017] ZALCJHB 453 (5 November 2017)
report generated for 26 June 2013, the vehicle in question was driven at a top speed of 202km/h. Grant-Olivier under extensive cross-examination by Lekoba also explained how the system worked, how data and speed was recorded, and how the devices operated separately from odometers in the vehicle. She testified that the odometer was not relevant for the purposes of speed reading, as the information on the device was generated from the satellite GPS. Dismissal fair.
misconduct: fraudulent conducts relating to leave applications
JR1090/2015
NUM obo Namane v Commission for Conciliation, Mediation and Arbitration and Others (JR1090/2015) [2017] ZALCJHB 455 (6 November 2017)
It is further my determination that the originality of the forms should not have been a determining factor whether the applicant has indeed committed misconduct or not. In fact, in terms of the evidence led, it is clear that the leave forms were requested from a number of employees after it became apparent that the system did not balance as far as leaves are concerned. It is therefore unfair to limit his determination to the applicant when the applicant was not the only employee who had submitted copies of the leave forms.
misconduct: crib notes on her desk under her examination pad
JR435/15
Pick 'n Pay Retailers (Pty) Ltd v Letsoalo (JR435/15) [2017] ZALCJHB 445 (20 November 2017)
Independent Newspapers (Pty) Ltd v Media Workers Union SA, on behalf of McKay and others (2013) 34 ILJ 143 (LC).
This court, has held on numerous occasions that in the face of dishonesty by an employee, there is very little chance of the trust relationship being rebuilt. Dismissal is general seen as a fair sanction in those circumstances. The arbitration in this case did not consider that aspect of the case before him. That failure makes his finding on sanction so unreasonable that no other arbitrator could have reached the same conclusion. In those circumstances the award must be reviewed and set aside.
[37] The employers decision to dismiss was fair, having regard to the importance of the rule, and all the other factors. And more specifically, the importance of the trust relationship with regard to a person that works in the receiving department of a retail organisation, and this evidence was not disputed by the applicant.
incapacity: ill health
JR534/12
Paraxel International (Pty) Ltd v Chakane N.O. and Others (JR534/12) [2017] ZALCJHB 435; (2018) 39 ILJ 644 (LC) (21 November 2017)
Item 10 and 11 Schedule 8 to the Labour Relations Act
Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others [2007] ZALC 98; [2008] 4 BLLR 356 (LC); (2008) 29 ILJ 1239 at paras 70 -76.
an enquiry to justify an incapacity dismissal may take a few days or years, depending mainly on the prognosis for the employees recovery, whether any adjustments work and whether accommodating the employee becomes an unjustified hardship for the employer.
MTN Service Provider (Pty) Ltd v Matji NO and Others [2007] ZALC 40 at paras 14 15.
It appears from all the evidence that the applicants decision to dismiss her was based not so much on her incapacity as her long and persistent periods of absence from work due to ill-health. That is why the applicant insisted that the enquiry before the first respondent should have been formulated broader than it was to make reference to the habitual and persistent absenteeism of the third respondent. That is not the test. The test is whether the third respondent was at the time of dismissal capable of rendering her services to the applicant. She was never given a chance to prove that she was. I am thus satisfied that the first respondent asked and answered the correct question.
As regards the second issue, there was no evidence before the first respondent that the third respondent had any say in the applicants consideration of alternative positions of a less stressful hue. Whether or not such positions indeed existed is a separate enquiry.
[29] These principles are trite. By now it is reasonable to expect that employers clearly understand the obligations in terms of Items 10 and 11 of the Code. Even though an employer may not be obliged to retain an employee who is not productive, fairness requires that a proper assessment be made of whether that situation has been reached before the employer resorts to dismissal.[12] Such an assessment cannot be undertaken in an arbitrary manner and without properly consulting the employee on possible alternatives.[13]
AECI Explosives Ltd (Zomerveld) v Mambalu (1995) 16 ILJ 1505 (LAC)
[35] ...the court held that there should be a distinction between dismissal for persistent but intermittent absence for ill health and dismissal for prolonged absence owing to long-term illness. In that matter, the employee was dismissed for persistent but intermittent absence for ill health. The court stated that a persistent but intermittent absence for ill health should be treated as analogous to a disciplinary matter capable of being regarded as a dismissal for misconduct as opposed to incapacity. The procedure followed by the employer was found to be fair as it had given the employee warnings to improve his attendance at work; it had given him the opportunity to make representations; it had investigated his claim that his working conditions were the cause of his illness and found that that claim had no substance; and, finally when there was no adequate improvement in the employees attendance record, it had been justified in treating the persistent absences as a sufficient reason for dismissing him.
misconduct: breached the Mine Health and Safety Code
JR2265/14
Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v Commission for Conciliation, Mediation and Arbitration and Others (JR2265/14) [2017] ZALCJHB 447 (1 December 2017)
The Applicant argues that Venters evidence, by virtue of his position as chief safety representative, should be accepted.
poor performances
JA48/15
Damelin (Pty) Ltd v Solidarity obo Parkinson and Others (JA48/15) [2017] ZALAC 6; (2017) 38 ILJ 872 (LAC); [2017] 7 BLLR 672 (LAC) (10 January 2017)
employee dismissed for failing to meet stipulated target court finding that period to meet target, after a warning, was too short or that target was incapable of being achieved. Appeal dismissed with costs; period of some 27 days within which to achieve the reduced target set in that letter, given all that preceded it and taking into account that it was not achieved even with assistance afforded by Damelin head office goes to show that either the period was too short or that the target was incapable of being achieved.
Palace Engineering (Pty) Ltd v Ngcobo and Others (2014) 35 ILJ 1971 (LAC).
Although a senior employee is indeed expected to be able to assess whether he is performing according to standard and accordingly does not need the degree of regulation or training that lower skilled employees require in order to perform their functions, an employer is not absolved from providing such an employee with resources that are essential for the achievement of the required standard or set targets.
misconduct: desertion
JA19/2015
IDWU obo Linda and Others v Super Group and Others (JA19/2015) [2017] ZALAC 17; (2017) 38 ILJ 1292 (LAC); [2017] 10 BLLR 969 (LAC) (28 February 2017)
[37] Accordingly, despite the employees having been guilty of desertion, and despite the serious consequences for the business credibility of the employer, the sanction of dismissal was inappropriate. Allowing due weight to the effect of their misconduct on the business credibility of the employer, a final written warning would be proportionate to their delinquency. If there had been no other opportunity to be placed, as appears to be the case, the employees would have faced retrenchment.
pornography count
DA6/2015
Sasol Nitro v National Bargaining Council for the Chemical Industry and Others (DA6/2015) [2017] ZALAC 22; [2017] 9 BLLR 883 (LAC); (2017) 38 ILJ 2322 (LAC) (3 May 2017)
[25] The pornography count looms large. Yet the charge, which draws on the text of the disciplinary code paragraph 6.5(c), in my view, despite the way it was relied upon in the proceedings, seems not obviously to be an injunction that covers the keeping of pornography on the laptop. Paragraph 6.5 (l) of the code deals with indecency and accepted community norms and might have been a closer match, but Reddy was not charged with that. Still less was he charged under paragraph 6.5 (n) of the code, which concerns itself with the reputation of Nitro being tarnished. Viewing pornography per se is not a criminal act, unless, of course, it is child pornography, an accusation not made in this case. deplorable as it may be, and moreover, no evidence exists to prove he viewed it instead of doing his job. What was left of the charge, was in, truth, as alluded to above, no more than abusing the laptop for private purposes.
racial remarks towards a fellow employee by referring to him as swartman
JA45/16
SAEWA obo Bester v Rustenburg Platinum Mine and Another (JA45/16) [2017] ZALAC 23; (2017) 38 ILJ 1779 (LAC); [2017] 8 BLLR 764 (LAC) (3 May 2017)
Employer bore the evidentiary burden in the arbitration proceedings to prove that the language used was objectively derogatory. The test is an objective one - the court must examine the entire context in which the misconduct is alleged to have occurred and decide on a balance of probabilities whether the employee is guilty of such conduct and whether the employer has discharged the onus of proof - Once that is established on the evidence, the burden of proof shifts to the employee to prove the existence of a ground of justification and that the derogatory or racist remark was not made with the intent to demean. Evidence shows that the employee had no reason to denigrate his fellow employee as he did have a need to identify the other employee - a person whose name, rank and division was unknown to him - and he used race as a descriptor in doing so. The employee was charged with making a racial remark by referring to a fellow employee as a swartman when requesting that he moved his vehicle. There is no conceivable reason why race might justifiably have served as an identifier.
Modikwa Mining Personnel Services v Commission for Conciliation Mediation and Arbitration and Others (2013) 34 ILJ 373 (LC).
What the Modikwa Mining judgment (and many others) demonstrate is that despite the formal dismantling of institutional apartheid, issues of race and racism remain prevalent in South African workplaces. The use of racial identifiers plays an obvious role in the perpetuation of negative stereotypes. The concept of race, as a social construct, continues to be imbued with ideological baggage and can serve the purpose of subjugation, where particular race groups continue to be viewed as other.
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp and Others [2002] 6 BLLR 493 (LAC) at para 38, South African Revenue Services v Kruger [2017] 1 BLLR 8 (CC).
[15] It is close on two decades since the dismantling of the apartheid regime, yet racism remains a key challenge to our democracy. Racism is particularly pervasive in the workplace, where concerned employers have adopted a zero-tolerance approach to racist conduct and the use of racial expressions or epithets which are derogatory by making such misconduct a dismissible offence. Our courts have correspondingly dealt with acts of racism, and the use of racist language in particular, very firmly visiting upon such conduct the sanction of dismissal.
misconduct: gross negligence
JA16/16
South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017)
grossly negligent and had acted in a reckless and uncaring manner with regard to the patients; the respondent (the department) did not follow the proper procedure the applicant was given an opportunity to explain his actions to the respondent in a letter dated the 30th of November 2009 which he failed to do.
Substantively fair dismissal
misconduct: racist words
CA6/2016 South African Breweries (Pty) Ltd v Hansen and Others (CA6/2016) [2017] ZALAC 29; (2017) 38 ILJ 1766 (LAC); [2017] 9 BLLR 892 (LAC) (25 May 2017)
"Julle k****s is almal donnerse ewe onnosel
Matter resolves around the credibility finding on the credibility of the various factual witnesses; their reliability; and the probabilities
However, where the word kaffir is used, as is the case here, its derogatory connotation is so blatant as to be taken as established. It bears repetition, in this regard, that being called a kaffir is one of the worst insults in the South African context.[13] However, the employer will still bear the onus to prove that the employee uttered the derogatory word/s.
misconduct: gross dishonesty for activating the in-contact service SMS notification on the company’s credit card without informing the employer and also to divert all company SMS notification to his cell phone
JA107/2015
Moen v Qube Systems Proprietary Limited and Others (JA107/2015) [2017] ZALAC 31; [2017] 11 BLLR 1096 (LAC); (2017) 38 ILJ 2712 (LAC) (31 May 2017)
[27] In light of the finding that Brassey AJs order stands to be set aside on the basis that the learned judge applied the incorrect test and that the decision of the arbitrator is not one of which it can be said that a reasonable arbitrator could not have reached on the material placed before him.
[26] Viewed in its totally, the evidence does reveal that the appellant did not notify anyone at first respondent, in particular, Mr Dyson, that he was receiving information about first respondents bank account or that he took steps to rectify the position. But alone this is insufficient to conclude, on the evidence that was placed before the Commissioner, that the result reached, namely that on the charges brought by first respondent, the dismissal of appellant was unreasonable in terms of the proper test for review which must be applied.
First respondent is to pay the appellant compensation in the amount R936 000.00
trust
DA08/16
Workforce Group v McLintock and Others (DA08/16) [2017] ZALAC 49; (2017) 38 ILJ 2517 (LAC) (1 August 2017)
Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (2008) 29 ILJ 2581 (LAC); See also Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others 2009 (3) SA 493 (SCA); (2009) 30 ILJ 829 (SCA); Absa Bank Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Miyambo v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 2031 (LAC); Standard Bank of SA Ltd v CCMA and Others (1998) 19 ILJ 903 (LC) at 913 para 38.
It is one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee. A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.
nepotism
PA8/16
Fort v COEGA Development Corporation (Pty) Ltd and Others (PA8/16) [2017] ZALAC 50 (17 August 2017)
on account of her conflict of interest/unethical conduct (nepotism) and influencing the recruitment process - substantively unfair.
[97] In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others[15] this Court restated the consistently adopted approach, laid down in the jurisprudence of the Labour Court in Standard Bank SA Ltd v CCMA & others[16] to the effect that it is one of the fundamentals of the employment relationship that the employer should be able to place trust in their employees to discharge their responsibilities dutifully. A breach of this trust in the form of conduct involving dishonesty, as in this case, is one that goes to the heart of the employment relationship and is destructive of it. The sanction of dismissal must be seen as a sensible operational response to risk management in the particular enterprise.[17]Nepotism has a damaging effect on the positive corporate culture and is a potential threat to the morale of other employees. I am satisfied that dismissal is the appropriate sanction in the circumstances of this case.
misconduct: reckless and/or negligent driving that resulted in substantial loss to the employer
JA53/16
Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017)
Held that the employer is required to apply the penalty of dismissal consistently in a precedent-setting system for essentially similar misdemeanours as employees who were sanctioned in the past as the misconduct under consideration. Although the employee contended that the employees faced with same offence were not dismissed, the employer failed to adduce any evidence demonstrating that those employees personal circumstances differed significantly from those of the employee. Employees dismissal substantively unfair. Consequently, the Labour Courts judgment upheld albeit for different reasons appeal dismissed.
(Incomplete)
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