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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on “Can you vary or prematurely terminate a fixed-term contract?” We also look at the following new cases: the first case covers a range of interesting topics, including whether alcohol abuse should be treated as misconduct rather than incapacity, the need to convey a clear message to employees about unacceptable conduct as justifying the need to dismiss, and the status of expired warnings. The second is a case about the failure of the employer to meaningfully intervene in sustained racial discrimination in premises provided by the employer.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
The opening words of the judgment in Transnet Freight Rail v Transnet Bargaining Council and others (LC Case no.: C644/2009 Date of judgment: 4 March 2011) make it clear that the primary issue dealt with in the judgement relates to whether alcohol abuse should be treated as misconduct rather than incapacity. This makes for interesting reading and is covered extensively in Worklaw’s current ‘newsflash’- subscribers can access this on www.worklaw.co.za
The judgement is also worth reading for other reasons. Aside from providing clear guidelines on the application of the Sidumo review test (ie whether the arbitrator’s award was ‘a decision that a reasonable decision maker could not reach’), the court also commented on the need to send a clear message to other employees about certain conduct being unacceptable, as a justification for dismissal.
Traditionally, the focus has very much been on a breakdown in the trust relationship as justifying dismissal. The Dismissal Code of Good Practice in the LRA talks of the dismissable offence having made ‘a continued employment relationship intolerable’. The courts have reinforced the view that in the absence of evidence showing a breakdown in the trust relationship with the employee, the decision to dismiss will be unfair – eg see Edcon v Pillemer (191/2008)  ZA SCA 135 (5 October 2009).
In the Transnet Freight Rail judgement, the Labour Court had this to say (clause 36) in determining whether dismissal was justified:
“A further consideration ought to be the implications of being lenient in the application of an important rule and the message such lenience 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.”
This has important implications for parties disputing the fairness of a dismissal, and employers are likely to quote this judgement extensively in their future closing arguments. Employees/unions will have to consider an appropriate response to this strategy.
In this case, an employee with 7 years’ service and employed in a ‘safety critical’ position was dismissed for being under the influence of alcohol at work. An arbitrator’s award reinstating her was overturned on review. Read Worklaw’s current newsflash on Worklaw’s homepage for further details.
Expired warnings expired … or not really
The Transnet Freight Rail judgement is also worth reading for its comments on expired warnings. Due to the ‘safety critical’ position the employee occupied, the offence of being under the influence of alcohol at work constituted serious misconduct in terms of Transnet’s disciplinary code. At the time the employee committed the offence on 24 May 2009, she was on a valid serious written warning for being under the influence of alcohol at work which had been issued on 28 May 2008 and was valid for twelve months. In other words, this was 4 days’ short of its expiry date.
Whilst there was a valid warning in place in this case (just), the court went on to comment on the status of expired warnings. The court agreed with the views expressed in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) which stated that previous expired warnings could be taken into account when they showed a consistently deplorable employment record. In this regard, that court stated the following:
“To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings. An employee's duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances
I am of the view that an employer is always entitled to look at the cumulative effect of the misconduct of the employee.”
The problem we have is how the above would be applied, particularly in cases where the employer’s code makes it clear that warnings lapse after their expiry date. It was made clear in Numsa & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 (LC) that if the disciplinary code or contract of service provides that the warnings lapse after a particular period, they cannot be held against employees after that period.
This is a sorry story. The employee claimed that during his time at the municipal fire station he and his family have been exposed to severe racism, directed at him and his family not by the employer itself but by certain white colleagues and their families living in the same fire station complex. However, the employee complained that despite his efforts to bring matters to the attention of his employer, the problem has not been adequately addressed by the employer.
This harassment continued even after the employee complained about it. His wife reported matters to the director of operations who did reprimand his white colleagues by warning them that if they or their children did not stop their behaviour he would suspend them and they could possibly be dismissed. He also reportedly instructed the station commander that whatever happened at the fire station was his responsibility and he had to sort matters out. This was the high watermark of preventative action taken by the employer.
The pattern of abuse by some of the white residents towards the employee's family and towards other black residents in the complex continued. After one confrontation the employee suggested that the station commander refer the matter to his superior. He refused to do this because someone else had previously complained that he could not manage the station.
After a physical attack, the employee requested to be transferred to the Disaster Management Department. He had a qualification in the field of Disaster Management, which made such a transfer feasible. Nothing came of this request. The employee was then charged with fighting with colleagues and of bringing the reputation of the employer into disrepute. Neither of his two white colleagues who were participants in the fracas were charged.
The employee was only charged with misconduct nine months after the event. Before the disciplinary enquiry was held, he and his sons were put on trial facing criminal charges relating to the same incident. Ultimately they were acquitted of all charges. The disciplinary enquiry was eventually held and he was found guilty on the charge of fighting with colleagues and issued with a warning. Shortly before the enquiry began, the employee referred a complaint to the Human Rights Commission relating to the abusive treatment he and his family had suffered at the hands of his colleagues. It appears that nothing concrete resulted from this referral. The employee referred two disputes to the South African Local Government Bargaining Council. The first dispute was an unfair labour practice dispute over the failure of the employer to promote him to its Disaster Management department, despite many requests to do so and despite his competence in that field. The second dispute concerned a complaint of unfair discrimination arising from the racist harassment by his fellow employees which the employer had failed to eliminate.
These were the sad facts in Biggar v City of Johannesburg, Emergency Management Services (LC CASE No: JS 232/09 Date of judgment: 10 February 2011). Why this case is of interest is that the Labour Court was being asked to intervene in harassment / discrimination which took place outside the workplace in off-duty time, involving entire families. The court said that the labour courts have long acknowledged that disciplinary action may be taken against an employee for conduct committed outside the workplace if it has a bearing on the employment relationship. In this instance, the animosity directed towards the employee by some of his colleagues could not have boded well for their working relationship in emergency situations. The court was satisfied that the residential circumstances were so closely linked to their employment as emergency fire personnel that for all intents and purposes they remained at the workplace when they were off duty. In the circumstances of this case the court said that it would be artificial to treat the relevant individuals’ conduct towards each other at their residential quarters as conduct which did not occur while at work, because of the close relationship between the workplace and the residential arrangements which applied to them.
When it came to the remedy in terms of s 50 (2) of the EEA, the court said that the type of relief the court can award is wide and the listed remedies are not mutually exclusive, nor are other unspecified forms of relief excluded provided they are appropriate, just and equitable. The court found that the employer ought to take more proactive steps to place the employee in another appropriate post in a different department. Secondly, the employer had to take more decisive measures to eliminate acts of racial harassment between employees residing on its premises. The court said-
“There is no reason why the employer's disciplinary code should not be adequate to deal with instances of racial harassment. What appears to be lacking is the will to follow through in giving effect to the code. Accordingly, it seems that some degree of compulsion is required which impels the employer to initiate an investigation and, if necessary, take disciplinary action when circumstances indicating racial hostility arise”.
The court tailored an interesting order (refer to the case summary on Worklaw to read it in full) which not only compensated the employee but ordered the employer to review vacant posts into which he could be transferred. In addition it obliged the employer to investigate several matters to deal more systematically with discrimination in future.
The case is a pertinent reminder of the legal obligation on employers to deal with discrimination and harassment when it is drawn to their attention.
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