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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 whether the sanction of a disciplinary chairperson can be changed by management. We also look at two new cases: the first dealing with the issue of incompatibility and the second dealing with freedom of expression, namely whether printing critical comment about the employer is a dismissable offence.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
In many workplaces there is the employee who may well be very competent but who just cannot get along with colleagues. Sometimes this reaches the point where relationships break down completely and dismissal seems the only way out. The employer is then faced with this problem: The LRA permits only three grounds for dismissal: misconduct, incapacity or operational requirements. Into which of these categories does incompatibility fit?
The matter arose again recently in the case of Lotter and Red Cross Society (2006) 27 ILJ 2486 (CCMA). After five months of a 1-year fixed-term contract the provincial council of the Red Cross society voted to terminate the applicant’s services on the grounds of incompatibility.
The arbitrating commissioner at the CCMA noted that the LRA had only three bases for dismissal, namely misconduct, incapacity and operational requirements. The arbitrator applied the following guidelines to assess the case :
- whether the employee had caused disharmony in the workplace;
- whether the disharmony caused was of such an extreme nature that it was irremediable;
- whether the disharmony had an adverse or potentially adverse effect on the organisation;
- whether the employee was put on terms to correct the behaviour causing the disharmony and given a reasonable opportunity to make amends;
- whether the dismissal was the only reasonable way to deal with the matter.
The Commissioner observed that the council did not have the right to take executive decisions relating to the suspension or dismissal of staff, but only to make recommendations. The dismissal was substantively unfair because of the decision to terminate the applicant’s employment at the behest of the provincial council without pursuing the reasonable alternative of a mediated solution. Compensation equivalent to the balance of the fixed-term contract was awarded.
This case reminds us that where incompatibility is not related to an act of misconduct but arises out of subjective relationships in the workplace, it is best treated as a form of incapacity.
Freedom of expression and criticism of the employer
It is accepted that an employee is under an obligation not to bring the employer’s name into disrepute. Under our Bill of Rights which guarantees freedom of expression, there is an inevitable tension between the right to be critical and the obligation not to disparage the employer. This issue arose in the recent case of Cosawu on behalf of Khumalo and Royal Ascot Superspar (2006) 27 ILJ 2452 (CCMA)
The employee, a merchandiser in a food store, wrote an article for a socialist newspaper alleging that the employer was underpaying its staff in terms of the applicable sectoral determination, and reporting two incidents in which a fellow employee had allegedly been abused by the employer. The paper was distributed amongst other employees. The employer denied the truth of these allegations and, after a disciplinary enquiry, dismissed the employee for gross misconduct in that he instilled a negative approach towards management via a derogatory speech and comments in the article. The article was also considered defamatory.
The commissioner considered whether the charges against the employee constituted a valid rule of the workplace, and, if so, whether they were breached. The commissioner found that, on the evidence, the staff were already demoralized prior to the publication of the article and the factual content of the article was true.
As to whether the article was defamatory and derogatory, the commissioner referred to the employee’s constitutional right to freedom of expression and was of the view that this right can be exercised in the workplace. The commissioner found that the employee had not brought the employer’s name into disrepute but rather was justified in drawing attention to the employer, which by ignoring unfair labour practices, had affected and the rights and dignity of workers. This was not a breach of any rule relevant to the workplace. The employer was ordered to reinstate the employee.
This decision is likely to cause concern among employers, especially as there have been other cases where dismissal for being critical of one’s superiors has been held to justify dismissal.
We suggest that it is a matter of degree and will depend on the circumstances of each case. Arising from this case, employers should however recognise the following:
- Freedom of expression should be respected in the workplace.
- Where an employee is dismissed for publishing information critical of the employer, this may be unfair if the dismissal is a penalty for breaching a rule that is not relevant to that workplace.
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