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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. In this month's article, we look at the topic of incompatibility - that difficult zone that stands between misconduct and incapacity. We also look at two new cases. The first deals with incapacity and how an employer must establish this. The second case involves an employer's responsibility to the employee when s/he is mentioned in a negative customer complaint.

This public newsletter is a free edited version of the subscriber newsletter.


Assessing incapacity

One of the problems about managing workplace performance is that we do it so badly. We become aware of deficiencies but we overlook them. Then comes a crisis and the decision to terminate employment is taken. But there has been little or no prior counseling, evaluation, warning or advice, and the employee, although maybe aware that the boss is not happy, has no clear idea why or what to do about it. This issue arose in the case of Human and Santam Ltd (2005) 26 ILJ 353 (CCMA). The case involved an in-house lawyer who had been dismissed for poor performance. The CCMA commissioner held that this was an unfair dismissal because the evaluation of the employee's performance was based entirely on the subjective opinion of his supervisor. There was no factual basis to establish poor performance - it was based on anecdotes. The award states that if an employer wants to treat work problems as performance-related, it has to establish some objective link between the conduct complained of and performance standards and outcomes.

The customer complaint

Many employers have a vital relationship with consumers and customers, and the seriousness with which an employer deals with complaints is often essential for a happy customer. But when customers (or passengers or shoppers) make a complaint, they usually have no desire to attend a disciplinary hearing to give evidence about the complaint. They want to leave it at the level of a complaint. So how does an employer treat this complaint in a way that is fair to the employee who is the subject of the complaint?

In Magic Company v CCMA & others (2005) 26 ILJ 271 (LC) the employer (a casino) received a complaint from a member of the public that the employee (a customer attendant at a children's entertainment centre) had been unhelpful, rude, cheeky and had attended customers with a mouth full of chewing gum. On the strength of this letter of complaint, the employer charged the employee with rudeness, poor customer service and damaging the image of the company, and following a disciplinary hearing, the employee was dismissed. The Labour Court, hearing the employee's version that the complainant was in a bad mood after standing in a long queue and had tried to jump the queue, being verbally rude to her in the process, held that the employee had been dismissed on uncontested evidence - the employer had accepted a written complaint ahead of a reasonable explanation. The court went further and said the hearing was procedurally unfair because the complainant had not been called to the hearing and the employee had therefore been denied the opportunity to challenge the evidence. The court said if the complainant cannot be at a disciplinary hearing, an employee, at the very least, must lead evidence to corroborate the allegations made in the letter of complaint.

This decision may come as a shock to many employers because corroborating evidence is often difficult to come by - the complaint arises out of a quick interaction between the employee and the customer, which may not have been witnessed by anyone else. Some employers (eg those who offer telephone services, advise the client that the conversation is being recorded for performance purposes) are trying to address this. Employers need to think of ways to implement a system that protects the level of service offered as well as the rights of employees.


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
June 2005
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