SASLAW CASE UPDATES SEMINAR

1. SASLAW CASE UPDATES SEMINAR INDIVIDUAL DISMISSAL

2. 1. DISHONESTY 1.1 Appropriate sanction Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC) • security guard dismissed after being found in possession of scrap metal he had removed without authority from factory • contradictory explanations given by employee • disciplinary code provided for both final warning and dismissal for theft • employee claimed that as ‘petty theft’ and in light of long service (25 yrs) and clean disciplinary record, dismissal too harsh a sanction Court held that: • in deciding on appropriate sanction commissioner must consider all relevant circumstances • role of the trust relationship remains predominant • dismissal for theft based on operational requirements • long service cannot be mitigating factor if employee guilty of theft • distinction between theft and “petty theft” artificial and disciplinary procedure that draws distinctions between degrees of theft is impractical • appellant breached relationship of trust and dismissal operationally justified and fair

3. Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC) • employee dismissed for impersonating an attorney and bringing employer’s name into disrepute • no remorse shown and persistent denial of wrongdoing Court held that: • purpose of progressive discipline to ensure that employee reintegrated into workplace, where employment relationship can be restored • where dishonest conduct and denial of wrongdoing progressive discipline inappropriate Boss Logistics v Phopi & others [2010] 5 BLLR 525 (LC) • senior employee dismissed for poor work performance and misconduct after misrepresenting qualifications and experience Court held that: • if an employee misrepresents competence no need to provide guidance, counselling or opportunity to improve • senior employees should not be counselled and should be able to gauge their performance • Commissioner not to second-guess employer’s performance standards • dismissal substantively fair

4. 1.2 Evidence of dishonesty Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA) • employee dismissed for dishonesty after failing to reveal that company car damaged in accident • employer claimed that trust relationship irreparably damaged • question whether material before CCMA sufficient proof of destroyed relationship of trust • employer’s evidence of the history of the matter and policy of intolerance of dishonesty insufficient Court held that: • evidence required of effect of conduct on the trust relationship • no evidence provided of nature and scope of her duties, her place in the hierarchy, the importance of trust in the position that she held • dismissal substantively unfair Mutual Construction Company Tvl (Pty) Ltd v Ntombela NO & others [2010] 5 BLLR 513 (LAC) • administrative clerk dismissed for fraudulently claiming 81 hours worked by himself. • claimed that disciplinary hearing procedurally unfair because employee not shown altered time sheets and disciplinary notice did not specify fraudulent entries Court held that: • employer not expected to draft charge sheets according to requirements of criminal courts. • employee understood nature and import of charges • charges clarified in de novo arbitration hearing

5. 2. AUTOMATIC TERMINATION OR DISMISSAL 2.1 Dismissal of labour broker employees Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC) • applicant formerly employed by respondent in terms of a ‘fixed term eventuality contract of employment’ - dismissed • contract stipulated that upon termination of respondent’s contract with client to whom employee rendered services employee’s employment with respondent would terminate Court held that: • termination may not constitute dismissal, when act of employer is not the proximate cause of the dismissal (eg expiry of fixed-term contract) • applicant not ‘dismissed’ as termination of employment contract triggered by third party and not by employer

6. Nape v INTCS Corporate Solutions (Pty) Ltd [2010] 8 BLLR 852 (LC) • employee sent offensive e-mail to colleague and labourbroker’s client insisted that he be removed from its premises • broker convened disciplinary hearing and issued final written warning • client refused to permit employee to return to its premises • broker retrenched employee after consultation process Court held that: • contractual provision that enables labour broker to withdraw employee placed with client contrary to public policy and in breach of constitutional right to fair labour practices • labour brokers and clients ‘not at liberty to structure their contractual relationships in a way that would effectively treat employees as commodities to be passed on and traded at the whim and fancies of the client’ • broker has right to approach court for recourse against client who refuses placement of employee

7. 2.2 Desertion JamminRetail (Pty) Ltd v Mokwane & others [2010] 4 BLLR 404 (LC) • contract of employment provided that it would automatically terminate if employee absent from work without permission for more than five consecutive days • employee dismissed after unauthorised absence from work Court held that: • private sector employer to grant deserters hearings before dismissing them if their whereabouts are known • employer knew employee’s home address and made no attempt to contact her • dismissal substantively fair but procedurally unfair because employee not given hearing before dismissal

8. 2.3 Imprisonment SamancorTubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC) • employee dismissed after being held in police custody for 150 days • dismissed for “operational incapacity” as he was physically unable to tender his services Court held that: • incapacity not confined to ill health, injury or poor work performance and includes inability to work through any incapacitating cause • fairness of dismissal depends on facts • employer had no idea how long the employee would be incarcerated, and there was a commercial need to fill employee’s position. • dismissal substantively fair

9. 3. CONSTRUCTIVE DISMISSAL Jordaan v CCMA (unreported PA 1/09 11/5/ 2010 LAC) • employee resigned after refusing to sign restraint of trade and claimed constructive dismissal Court held that: • 2 stage enquiry – i) whether constructive dismissal and ii) whether dismissal fair • not independent enquiries and same facts relevant to both • intolerability is an objective enquiry and employee must show that no reasonable option but to resign • employer had legitimate interest in asking for restraint to be signed and no constructive dismissal found Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (CC) • employee given choice between resigning and placed on “poor work performance training programme” • employee chose to resign claiming no option as going to get dismissed regardless Court held that • test for constructive dismissal is not whether employee has choice of resigning or remaining, but whether employer has made continued employment intolerable

10. Chabeli v CCMA & others [2010] 4 BLLR 389 (LC) Court held that: • objective assessment of the employer’s conduct to be assessed in totality to assess intolerability • court should not fragment the employee’s complaints and conduct of employer to be considered as a whole in assessing whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it

11. 4. CONTRACTUAL BREACH South African Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA) • employee dismissed and after pursuing remedies under LRA reached settlement agreement with employer • employee claimed damages for breach of employment arising out of his unfair dismissal • court considered whether High Court has jurisdiction to determine claim • comprehensive unfair dismissal provisions do not provide for importation of statutory rights into employment contract • when employees subject to and protected by LRA their employment contracts are not subject to an implied term incorporating the statutory right to fair labour practices and fair dismissal • mechanical duplication of common law and statutory rights flies in the face of legislative vision of a comprehensive labour law framework