Beware dismissals based on spite

By Ivan Israelstam, chief executive of Labour Law Management Consulting

Feelings of spite arise at work for a great variety of reasons such as:

  • Power struggles between managers
  • Employees competing for advancement
  • Racial and other prejudices
  • Scapegoating
  • Managers feeling threatened by other managers or senior staff
  • Sexual affairs
  • Favouritism and victimisation
  • Nepotism
  • The development of factions

Feelings of spite occur across the spectrum of all types of employers. While these smouldering conflicts affect all levels of employees, they tend to become much more intense and damaging in the senior levels of the organisation.

For example, in the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) Joseph was dismissed for failing to be present when money was being prepared for collection. The CCMA arbitrator found that, in the specific circumstance, it was unreasonable to have expected Joseph to be present at the preparation of the cash. This was because she was required to carry out a number of other duties at the time of the cash preparation. The CCMA also found that the dismissal had been implemented out of spite due to a personal clash between Joseph and her superior. As a result the employer was ordered to pay the employee 12 months’ remuneration in compensation.

In cases of dismissal due to spite employers might lose not only financially due to CCMA awards. A more serious consequence can be negative publicity. Also, the fallout in terms of damaged employee relations, impaired teamwork, poor performance and lost productivity can cripple an organisation.

It is therefore crucial that the employer:

  • Identifies personal hostilities early
  • Accepts that it needs to be dealt with urgently
  • Assigns its best industrial relations expert to develop and implement a strategy for resolving the conflict in an orderly, fair, pragmatic and legal way.

The higher up the organisation ladder an executive goes the more likely that, where conflicts exist, the employer will try to resolve the matter quietly by putting pressure on the executive to resign. Executives and other employees often accept small or mediocre ‘settlement packages’ to avoid the discomfort of a dismissal.

However, more recently, executives have begun to dig their heels in and are more reluctant to accept packages because jobs are harder to find. This means that employees are often negotiating bigger settlement packages especially if they have the backing of an experienced labour law negotiator.

Employers are warned that the amount of the settlement tends to increase in proportion to the extent to which the employer has breached the law. For example, we recently negotiated, on behalf of an executive, a settlement well in excess of one year’s remuneration. And this is becoming a more and more common occurrence.

On the other hand, we have also been able to help employers to avoid having to pay such crippling settlements by intervening before the pawpaw hits the fan. That is, where we have been called on in time we have been able to avoid rash action by the employer which then places the employer in a stronger negotiating position.

Workplace politics are here to stay but employers and employees can, by acting timeously and sensibly, prevent them from causing irreparable harm.

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