Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty; wilful damage to the property of the employer; wilfully endangering the safety of others; physical assault on the employer/fellow employee/client/customer; or gross insubordination.
When deciding whether or not to impose the penalty of dismissal, the employer should, in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances, including length of service, previous disciplinary record and personal circumstances as well as the nature of the job and the circumstances of the infringement itself.
In the case ABSA Bank Limited V Devapriya Naidu, Lester Sullivan And Commission For Conciliation the employee was convicted of misconduct involving dishonesty and subsequently dismissed after 20 years of service. Both the CCMA & Labour Court held that dismissal was substantively unfair and ordered reinstatement on ground that another employee who previously committed similar transgression, was only given a final written warning and not dismissed. In the Labour Appeal Court, the court reasoned the Parity Principle to be applied with caution.
In Edcon Ltd v Pillemer, Reddy was the user of a company vehicle, courtesy of Edcon’s car scheme policy. In June 2003, Reddy’s son was involved in an accident. In terms of the company car policy Reddy was obliged to, amongst other things, report the accident to Edcon, the South African Police Service and the relevant insurance company within 24 hours and not carry out repairs on the motor vehicle without the approval of the insurance company. Reddy did not comply with these policy regulations, did not report it and instead arranged with her husband for repairs at his panelbeating business at own cost. Edcon discovered this when the motor vehicle started to give problems and the dealership detected the damage. Reddy initially denied that the motor vehicle had been involved in a collision while driven by her, but later came clean in her final statement. In due course, Edcon convened a disciplinary enquiry to look into the matter and charged Reddy with “failure to be honest and act with integrity in that you committed an act, which has affected the trust relationship between the company and the employee in that on 8 June 2003 to 8 October 2003, you failed to report an accident of a company vehicle…”. She was found guilty and dismissed from her employment.
Contending that her dismissal was unfair, Reddy referred a dispute to the second respondent, the CCMA who appointed the first respondent to arbitrate the dispute after conciliation failed. The commissioner made an award in which she concluded that Reddy’s dismissal was substantively unfair and ordered Edcon to reinstate her but without arrear salary. The commissioner found that failure to report the accident was in itself insufficient to warrant dismissal, but that the crucial issue was whether the employee’s subsequent “lack of candour” had breached the trust relationship, as the presiding officers of the disciplinary and appeal hearing had found. The commissioner did not regard the sanction of dismissal fair because of the circumstances of the matter, the employee’s length of service (43 years), her previous unblemished record and the fact that the employee was only 2 years away from retirement.
Edcon was unhappy with the award and contended that the commissioner had not appreciated the extent of the employee’s dishonesty. Edcon further contended that the commissioner had erred by having regard to hearsay evidence, and that the company had led sufficient evidence to prove a breakdown of the trust relationship and launched review proceedings in the Labour Court in terms of Section 145 of the Labour Relations Act. The Labour Court declined to set the award aside and accordingly Edcon appealed to the Labour Appeal Court with that court’s leave. The Labour Appeal Court dismissed the appeal, concluding that the award was unassailable.
From the cases discussed above, it does seem that years of service has an apparent and important role to play in the decisions the courts came make. Albeit on different grounds, the decision has taken years of service as an important factor when deciding on the fairness of the dismissal. It seems that the pivotal point that carries significant weight when deciding to dismiss an employee for misconduct, who has a long history with the same employer, is trust. The trust relationship and its state of repair seem to be the praecipes on which decisions are made.
ABOUT THE AUTHOR
Siseko Nosenga obtained his B.Com degree in Law from UNISA in 2014. He is a SEESA Labour Legal Advisor.