Public Newsletter
Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on misclassifying the reason for dismissal – cases where the lines between misconduct, incapacity and operational requirements are blurred.
We also look at three cases: the first deals with principles of collective guilt and team misconduct. The second looks at the consequences of ‘splitting charges’. The third looks at whether the employer is required to produce proof of consistency in every case.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
Recent cases
Collective guilt or team misconduct?
Employees did not go underground and report to their work stations as scheduled but congregated at a locality on the mine. When management asked the reason for what was an unauthorised and unlawful work stoppage, three issues or demands were raised, requiring a response from management. These were (a) the payment of a Christmas bonus;(b) the payment of a new production bonus at the end of December 2006; and (c) the removal of a mine captain from the site in the light of a grievance for assault which had been filed against him.
There was interaction between management representatives and employees’ representatives which did not resolve the issues to the satisfaction of the employees, and who persisted in their refusal at that stage to go underground and commence their duties. Management, in the face of that refusal, prepared and issued an ultimatum which was distributed to the gathering. The ultimatum was also faxed to the union’s offices.
Individual employees, in ostensible compliance with the ultimatum, went underground and, the union contended, reported at their work stations and commenced their duties. That however, according to the employer, was not what in fact occurred. In the course of the morning, and through two-way radio communication with the mine shift bosses at the various underground work stations, management was informed that the normal duties of the employees concerned had not been resumed and that normal production was being deliberately impeded.
Management’s response was to prepare a further notice of lock-out, accompanied by a second document, a “Notice to Attend a Disciplinary Enquiry”. The notice of lock-out and its accompanying disciplinary enquiry notice was handed to each of the employees as they knocked off and the lock-out was thereafter comprehensively enforced.
After a collective disciplinary hearing the Chairman handed down his findings to the effect that each of the 305 employees charged was guilty of the allegations against them in the formal charges and ordered that they be dismissed without notice.
These are the facts in TAWUSA obo TAU & 305 Others v Barplats Mine Ltd (Crocodile River Mine) (LC CASE No: JS105/07 Judgment 24 April 2009).The court had to decide whether the employer could dismiss the strikers without individuals being given a chance to present an argument (or evidence) why they should not be dismissed. The court followed previous cases and said that the concept of ‘collective’ guilt is wholly repugnant to our law and any policy in terms of which all members of any group must bear collective punishment for the wrongdoings of some of the members is unacceptable because it runs counter to the tenets of natural justice and is a violation of the well-known principle that a person is presumed to be innocent until proved guilty.
But the court recognised that the concept of ‘team misconduct’ is distinguishable from collective guilt. In situations of ‘team misconduct’ it is permissible to act against the entire team if each member has a role to play in attaining the performance standard set for the team. If that standard is not attained each member must be given an opportunity to explain the team’s failure; the person to whom the explanations are given must be objectively satisfied that the team’s failure cannot be blamed on any particular member of that team.
Because there had been no attempt by the employer to investigate the causes and circumstances of the loss of production by way of any individual enquiry, reinstatement (without retrospectivity) was ordered by the court. The lesson of this case is that where disciplinary proceedings are arbitrarily launched against a whole group of employees, if there is no opportunity given for individuals to state their excuse, the dismissals will be unfair. This is because that process is what the court called “an unqualified application of what has been described as the repugnant doctrine of collective guilt”.
Splitting the charges
The employee was an African male, employed since 1986 as a machine operator. An incident happened between him and an Indian male, a sales manager, when he refused to take instructions from the manager and told him that “you Indians - your time is coming”. This resulted in him being charged with gross misconduct (intimidating and threatening behaviour); gross insubordination (refusal to follow instructions); a breach of trust; negligence / dereliction of duties; and race discrimination. He appeared at a disciplinary enquiry and was found guilty of all thecharges levelled against him and was dismissed. He referred his dispute to the CCMAfor conciliation and arbitration.
At the CCMA the commissioner held that although the words did not constitute intimidation, it was still very serious and warranted disciplinary censure against the employee. His contention was that in the circumstances, the employee should have been subjected to progressive and less severe discipline. The commissioner said that racism and any racial slurs should not be tolerated in the work place. Having said that he still found it unfair that the chairperson of the disciplinary hearing neglected to take into account the circumstances in which the alleged utterances were made. Furthermore, the manager, who was a belligerent party in the dispute, was not subjected to any disciplinary measure. This was selective discipline that was completely unfair, in the commissioner’s view. The commissioner issued an award in terms of which he found that the employee’s dismissal was procedurally and substantively unfair. He ordered the employer to pay him 10 months compensation.
In Specialised Belting & Hose (Pty) Ltd v Sello NO & others (LC case No JR3136/05, judgment 6 February 2009) the Labour Court dismissed the employer’s application to review the award. One of the main reasons was that there had been a ‘splitting of the charges’. The court held that where an employee is charged with several acts of misconduct flowing from a single incident, this may amount to an unfair splitting of charges.
Why is the splitting of charges unfair? As is pointed out in the article below, the same act can be described in different ways. There is often a fine dividing line between negligence and incapacity, and sometimes it is necessary to frame disciplinary charges in the alternative. But ‘splitting the charges’ is where the same incident is described in a variety of ways. While the employer will use the same facts and evidence to prove the variety of charges, the chairperson may, in finding the employee guilty of all the charges, impose a more serious sanction because cumulatively it looks like the employee was guilty of many acts of misconduct. The lesson from this case is that employers should avoid splitting charges by describing the allegations against the employee in simple terms, without legal jargon, that best describes the alleged misconduct.
Interestingly the court had some stern words for employers (and HR practitioners) who it felt abuse the disciplinary process:
It is a case that shows how some unscrupulous employers may gang up against employees and then throw the book at them. False evidence would be led and sympathetic chairpersons be hired to chair disciplinary hearings to rubber stamp decisions taken by those employers. The disciplinary hearing is reminiscent of the kangaroo courts of the early 1980's. How does one explain that a person with 18 years service, is dismissed for the misconduct that he was dismissed for? There surely is an honour among human resource managers. It is hoped that they are there to guide both employers and employees around employment issues.
Does the employer have to prove consistency in every case?
The employee, who was at the time of her dismissal employed as the area distribution manager, was charged with misconduct or poor management in that she failed to report on time expired stock to the value of about R200 000, and gross misconduct (dishonesty) in that she intentionally instructed employees to change the actual stock count in order not to reflect the true variance in the variance report. After her dismissal, the employee referred the dispute to the CCMA where the Commissioner rejected her defence and held that the employer had proved its case. However, because the employer did not specifically lead evidence that the workplace rule had been consistently applied, the Commissioner held that the sanction of dismissal was not appropriate. The issue of inconsistency had never arisen during the arbitration proceedings.
On review the Labour Court in Parmalat South Africa (Pty) Ltd v CCMA & others (LC Case Nn: JR 462/07; judgment date 3rd February 2009) held that the Commissioner’s decision was unreasonable in that the Commissioner misunderstood the application of the concept of inconsistency. It is clear from this case that if there is no evidence of any other employee having committed the same offence and not being charged or being charged and a lesser or no punishment being imposed on such an employee, then the employer does not need to produce evidence of past consistency. In other words, the employer only has to lead evidence and shift the burden of proof on the disputed allegations of unfairness.
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Bruce Robertson
July 2009
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