Public Newsletter


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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter ooks in depth at the revised 2005 Code on Sexual Harassment. We also look at two new decisions, one resolving whether it is unfair to charge an employee with an offence not listed in the disciplinary code, and the second dealing with whether it is fair for an employer to discipline employees who, as witnesses in a disciplinary hearing, give false evidence.

This public newsletter is a free edited version of the subscriber newsletter, and does not contain all the information contained in the subscriber newsletter.


What if the misconduct is not listed in the disciplinary code?

The purpose of a disciplinary code is to alert employees as to what conduct is regarded as misconduct so that it can be avoided. What if the code is silent about a form of misconduct? Does this mean that the employer cannot act against the employee? Does it mean that the employer has to negotiate or introduce a new or revised code before it can act?

In the case of Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC) a senior employee used the company credit card for personal purchases without authorisation. On the first occasion she notified her supervisor by e-mail that she had done so, but continued to use it without authorisation. She was charged and dismissed for unauthorised and irresponsible use of the company credit card. When the matter came to arbitration the arbitrator used the fact that this charge was not listed in the disciplinary code as a basis for finding that the dismissal was substantively unfair.

In the Labour Court it was held that, as the misconduct constituted a standard form of ethical behaviour, the fact that it was not specifically listed in the code did not impact on the fairness of the employee being charged with that offence. But be warned, the judge indicated that in other circumstances it might be different: she said "The fact that the misconduct is not specifically described in the code is of no consequence in this particular matter and on these facts." The implication of this is that if the misconduct is not a clear-cut case of ethical behaviour - the kind of thing every one knows is wrong - the employer may not be able to act until a new rule is introduced. The Code of Good Conduct: Dismissal (Item 7(b)(ii)) requires the employee to be aware or reasonably expected to be aware of workplace rules and standards.

When being a witness can lead to trouble

It is accepted that an employee, charged with misconduct, is entitled to lead witnesses of her / his own to give evidence in support of a particular version of events. Sometimes loyalty to a colleague in trouble and being united against the employer can lead employees who are witnesses to lie or give misleading evidence. When this happens the employer is faced with a problem: has a fresh act of misconduct occurred? Should the employer charge the witnesses or will this be seen as a punitive act which scares off potential witnesses in future hearings?

The matter arose in CEPPWAWU on behalf of two members and Leader Packaging (2005) 26 ILJ 1129 (BCA) where two employees challenged the fairness of final written warnings imposed on them by their employer for providing false evidence at an arbitration hearing involving the employer and a former employee. The arbitrator was satisfied that the employees had presented false testimony at their earlier arbitration and had then persisted with the discredited falsehoods in the second arbitration. The arbitrator found that their final written warnings had been fair. The arbitrator was clear: employees who come forward as witnesses "bear the responsibility of presenting truthful testimony."


Worklaw is a comprehensive labour law advice and information service, developed by some of South Africa`s most experienced labour arbitrators. Worklaw subscribers get free advice from experienced arbitrators via e-mail, can research the law and leading cases, are updated monthly on new cases, trends etc, and can use excellent training material, to name a few of these services. Subscribers are invited to an annual labour law workshop covering the key cases and trends from the past year.

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Bruce Robertson
July 2005
Copyright: Worklaw