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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks at opportunities to agree disciplinary action to be taken against employees. We also look at new decisions dealing with the length of time warnings apply for, procedural fairness in relation to strict compliance with disciplinary codes and the test to determine whether an employee is under the influence of alcohol.
This public newsletter is a free edited version of the subscriber newsletter, and does not contain all the information contained in the subscriber newsletter.
LATEST CASE REPORTS
How long should warnings last? What is their validity after they expire?
These are questions that are often asked. Most workplaces have a 6-month period for which a disciplinary warning is operative, but there is no common practice about what happens at the end of the warning period. At arbitration it is not uncommon for employers to refer to expired warnings to support a dismissal.
These issues arose in Numsa & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 (LC). As a result of a work stoppage, regarded by the employer as an unprotected strike, the employer initiated disciplinary action. Several employees were already on final warnings valid for 12 months for participating in an unprotected strike 10 months previously. The company issued final warnings to all participants who had not taken part in the earlier strike, and held disciplinary hearings for those already on final warning. These employees were dismissed. The union argued that the warnings were invalid because the company's disciplinary code specified that warning remained valid for 6 months only, after which the warnings were to be removed from the files and destroyed. This being so, the dismissed employees should have been treated in the same way as others who participated in the strike.
The Labour Court accepted this argument and held that the warnings had lapsed and were not valid in terms of the disciplinary code. Therefore all strikers had to be treated in the same way.
Procedural fairness - how strictly must a code be applied?
Any employer who has been in a dismissal arbitration will know that the dismissed employee or her/his representative inevitably adds several allegations of procedural unfairness to the main allegations of substantive unfairness. Often the allegations concern bias on the part of the chairperson, or a breach of technical requirements set out in the disciplinary procedure. This is frustrating because the disciplinary enquiry is explicitly said to be an informal procedure in the Code of Good Practice yet employers find themselves having to satisfy fairly technical requirements before an arbitrator will find the dismissal to be fair. These issues arose in Rand Water Board v CCMA & others (2005) 26 ILJ 2028 (LC)
An employee was dismissed and this dismissal was found by an arbitrator to have been substantively fair. However the arbitrator found several technical faults with the disciplinary procedure and, finding that the dismissal was procedurally unfair, awarded the employee compensation for the eight months between the date of dismissal and the date of the hearing.
On review the Labour Court found that the employer's disciplinary code was merely a general guide. The procedural irregularities found by the arbitrator were not such as to render the dismissal procedurally unfair and had not caused any loss or prejudice to the employee. The court found that no compensation should be paid to the employee. It seems as if this judgment establishes the principle that in the absence of prejudice to an employee, the failure by the employer to abide strictly to technical procedural aspects of its disciplinary code may not constitute procedural fairness.
How do you establish being 'under the influence' of alcohol?
In the recent case Numsa on behalf of Williams and Robertson & Caine (Pty) Ltd (2005) 26 ILJ 2074 (BC) an employee's supervisor smelt alcohol on the employee's breath. The employee denied being under the influence but admitted to drinking on the previous day, a Sunday. He requested a breathalyzer test which showed the presence of alcohol although the employee was under the legal limit for driving. He was subsequently dismissed.
The issue raised in this case is can an employee be dismissed for just being 'under the influence' of alcohol? If so, how do you establish this?
The arbitrator relied on the test of being 'under the influence' as whether an employee is no longer able to perform the tasks entrusted to him / her with the skill expected of a sober person.
The evidence in this case showed that the employee (a joiner) was required to show a high degree of skill. His job was technically complex and, given the nature of the tools used, was extremely dangerous. Applying these factors to the test, the arbitrator was satisfied that the employee was under the influence of alcohol. As there was a clear pattern of misconduct and because progressive discipline had no effect, the arbitrator upheld the dismissal as a fair sanction in these circumstances.
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