By Ivan Israelstam, chief executive of Labour Law Management Consulting
Item 7(b)(iv) of the Code of Good Practice: Dismissal (the Code) provides that, in deciding if a dismissal was fair, a person is to consider a number of factors.
One of these factors is whether dismissal was the appropriate sanction in the particular circumstances. Item 3(4) of the Code says that dismissal is only appropriate for those serious offences that make the “a continued employment relationship intolerable”.
Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.
While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider:
• Mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others.
• The nature of the job – For example, while sleeping on the job might be most serious for a security guard it may not merit dismissal for a back room clerk.
• Other circumstances attached to the case. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.
In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”
However, the concept of ‘intolerability’ is not an objective one. What an employer might find to be intolerable might seem to be tolerable to a judge who is removed from the situation. This is possibly why a number of judges and arbitrators have refused to interfere with the dismissal sanction even when they have found it to be somewhat harsh. They have let the dismissal stand because, albeit harsh, it is still within the bounds of reasonableness.
The parties will therefore, in order to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer form having to continue a relationship with the employee. If the employee can show that the relationship could have continued quite satisfactorily the arbitrator might find that the dismissal was unnecessary. However, if the employer can show serious damage to the relationship caused by the misconduct then the dismissal would be likely to be seen as fair.
In the case of NUMSA obo Khumari vs Harvey Roofing Products (Pty) Ltd (CLL Vol. 15 No. 10 May 2006) the employee had requested permission to borrow a tap to repair his Geyser at home. Without receiving a response to the request the employee took the tap and was dismissed. The arbitrator found that the employee had only borrowed the tap and that this did not justify the allegation that continued employment had been rendered intolerable. The dismissal was therefore found to be unfair.
Another type of justification for dismissal is where the conduct goes against the basic sensibilities of a society. In the case of CEPPWAWU obo Evans vs Poly Oak ( 2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace.. Despite the fact that the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal. The arbitrator noted that the Labour Appeal Court (in Crown Chickens (Pty) Ltd vs Kapp & others 2002, 11 LAC 6,12,3) had described racism in the workplace as “a plague and a cancer that must be rooted out.” The Court had found that such behaviour was “an anathema to sound industrial relations and a severe and degrading attack on the dignity of the employees in question.” The Court had also said that “ …..courts should deal with racism and racial slurs in a manner that gives expression to the legitimate feelings of outrage experienced by reasonable people in a society against racism.”
Due largely to South Africa’s history the offence of racism in the workplace cannot be tolerated. However, the employer needs to prove that the employee did perpetrate the offence and that the act itself was serious enough to merit dismissal. Also, where the offending employee argues mitigating circumstances the employer must give consideration thereto.