In our law, dismissals must be fair. More precisely, they must be both procedurally and substantively fair. One of the key elements of substantive fairness is that the sanction imposed must be appropriate, ‘the punishment must fit the crime’, so to speak.
This concept of appropriate sanction, more often than not, relates to claims of substantive fairness on grounds that the sanction is inappropriate due to the choice of dismissal as a sanction being too harsh. Lesser sanctions, such as warnings and final warnings, can similarly be grounds for substantive unfairness claims.
The point of departure in sanction selection is that dismissal is a sanction of last resort, and dismissal for single acts of misconduct must be so gross as to warrant dismissal, giving due consideration to all prevailing mitigating factors.
From time to time, the Labour Court is charged with the adjudication of reviews in which, normally an employer, contends that dismissal was an appropriate sanction in certain circumstances, notwithstanding the fact that a prior arbitration award has held that dismissal was too harsh a sanction. In cases of this nature, a Commissioner at arbitration may reverse a dismissal and replace it with a lesser sanction, such as final written warning.
This is precisely what occurred in the Labour Court judgment of Top Security Pty Ltd v CCMA & others (case number JR519/09).
In this case, the employee, a security officer, was dismissed for misconduct related to hooting at a site in the early hours of the morning, thereby purportedly disturbing the peace, and insolence toward a member of the public when also threatening violence towards him.
The version of the applicant was that a resident was awoken at 3.30am by repeated and persistent hooting near his home. On investigating this, he found that the hooting was from a motor vehicle driven by an employee of a security company. There was an exchange of words between the employee and the member of the public. The employee took exception to the manner in which the member of the public was talking to him regarding the noise created by his hooting, after which he informed this person that it was “bloody well unacceptable.”
The member of the public apparently then stated to the employee “then stop behaving like one.” This was in response to the employee accusing the member of the public of talking to him like a child.
The employee continued that the member of the public asked him what he was doing, called him bloody stupid and a bloody idiot. When he apologised to the member of the public, this person continued that “you bloody black don’t deserve to be in this neighborhood.” The employee apologised a second time. Then the employee told him to stop swearing at him, and stated that if he did not do so, he would “moer you.”
The employee alleged that this member of the public continued that “your mind is black therefore you can’t think.”
The employee was then disciplined by the employer and dismissed.
At the arbitration hearing, the Commissioner held that the sanction of dismissal was too harsh by virtue of the fact that, amongst other things, there had been racial slurs directed toward the employee, and this constituted significant provocation.
In the Labour Court review, the employer sought to have the award set aside on grounds that the Arbitrating Commissioner totally disregarded the evidence led and failed to appreciate that the employee committed a serious offence.
The Court acknowledged that the arbitration award found the employee guilty of bringing the name of the employer into disrepute, and held further that the employee did use the word “moer” which was unwarranted.
The Court continued that “it is now well established in our jurisprudence that the test to apply in review is that of a reasonable decision maker. In applying the test of reasonable decision maker, the Court seating in review has to determine whether the outcome reached by the Commissioner falls within the range of acceptable and reasonable outcomes. The review court does not concern itself with the correctness of the outcome but its reasonableness.”
The Court held that the Commissioner’s award was reasonable, and the application to review the decision of the Commissioner was dismissed.
It was further noted by the Court that whilst “the Commissioner may well be wrong in his conclusion, that is not the test. The test is reasonableness, having regard to the circumstances and the totality of the matter or facts which where before the Commissioner.” The Commissioner’s decision was deemed reasonable, and therefore did not want interference by the Court.
In essence, the preparation of a witness for a disciplinary hearing, is the same as that for an arbitration hearing. Our firm chairs disciplinary hearings across the country daily, and it has often been our experience that witnesses have either, at worst, not been prepare at all or, at best have been poorly prepared.
Witness preparation is crucial to both employers and employees. More often than not, the verdict will hinge on what testimony is given by witnesses. Other forms of evidence also play a role, but witness evidence is invariably the most important evidence. It is important to remember that evidence is led by witnesses in an attempt to influence the hearing chairperson, or arbitrator, that their testimony is credible and persuasive. If the evidence led is not led in a confident, credible and logically sequential sequence, the chairperson or arbitrator may well unimpressed by the testimony of the witness, and even confused to the extent that it is not possible to add any value to the evidence.
The preparation of witnesses need not be time consuming, and with a little planning and time, witnesses can be primed to lead cogent, relevant and most importantly, credible evidence.
To begin with, witnesses are frequently reluctant to give evidence. Disciplinary and arbitration hearing environments are understandably intimidating for witnesses. This trepidation has the potential to make them anxious to the extent that their evidence is less compelling that it needs to be. This to is a reason why witness preparation is important. As much as possible must be done to minimise witness anxiety to ensure that the value of their testimony is maximized.
So where do you begin? Well, first and foremost, one must identify which questions are going to illicit answers which best support one’s case. It’s not just question of identifying the relevant questions, but also the sequence in which they are to be asked and answered. For example, there must be a reason why question one is asked first, and the final question is asked last. It is also worth remembering that it is only a witnesses observations which are important, not their opinions.
For example, if a witness states that the employee looked to be under the influence of alcohol, this will be ruled inadmissible, as it is a witnesses observations, not opinions, which have vale as evidence.
Once all witness questions have been selected, in the sequence to be asked and answered, the asking and answering of the questions should be practiced with the witness for as long as it takes to ensure that all questions are answered in a way that ensures the anticipated answer for each question. This is critically important, as one of the most important guidelines in witness preparation is that the questioner should never ask a question that they do not already know the answer to.
Without prior knowledge of the answers to each question to be asked, the questioner is incapable of leading the evidence of the witness in a manner which best supports their case.
Next, witnesses should be informed that when they testify, they will be asked three sets of questions. To begin with, they will be asked the questions which they have been prepared to answer by the questioner; this is referred to as the witnesses evidence in chief. There is only one simple rule to remember when it comes to evidence in chief; such questions may not be asked in a leading way. This means that the question cannot be asked in a way which suggests the answer.
Thereafter, the witness is exposed to cross-examination. Cross examination is an opportunity for the witness to have his or her evidence in chief challenged. It is only during cross examination that leading questions are permitted. It is advisable to prepare one’ witness for cross examination, so that they can anticipate cross examination questions, and be prepared to deal with them during the hearing.
Finally, witnesses are re-examined. This is a second, and final. Opportunity for the questioner to put questions to his or her own witness. Again, no leading question are permitted, and importantly, re-examination questions may only relate to questions put to the witness during cross-examination.
It is simply not possible to present a case competently without the thorough preparation of witnesses
Employees have an obligation to meet reasonable performance targets and objectives. In so far as an employees work performance is of such a nature that the actual performance is less than that which the employer can prove it can reasonably have expected from the employee, the employee will be deemed to have acted negligently.
This principle is related to an employee’s obligation to act with care, and not to perform as well as they are capable of performing. As noted in a recent arbitration award, the requirements for dismissal for a single act of negligence are (1) that the employee failed to exercise the standard of care and skill that can be reasonably expected of him or her, (2) that the lack of care and skill manifested itself in an act or omission that could have caused loss to the employer, (3) that the loss or potential loss to the employee resulted or could have resulted from the employees negligent act or omission, and (4) the negligence must be gross.
Gross negligence is a form of serious misconduct which can justify the sanction of dismissal, even on a first transgression.
Repeated acts of negligence which are not gross (ie: serious enough to warrant dismissal in its own right), could also warrant dismissal, if the employee has failed to respond positively to progressive disciplinary sanctions
When negligence is alleged by an employer, the so called reasonable person test is applied. In essence, this rule relates to an employer being reasonably entitled to expect a certain minimum level of performance from an employee, and once it has been established that the employee is capable of performing at this level, any subsequent performance which is inferior to this proven level of performance is deemed to amount to negligence on the part of the employee. Put differently, in cases of this nature, the employer seeks to prove that the employee was capable of avoiding the inferior work performance, level of production, and or quality of performance.
In Transnet Freight Rail v Transnet Bargaining Council and others (2001 6 BLLR LC), it was stated that negligence can be defined as a failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. This was reiterated in the arbitration case of Petrus Frederik Rautenbach v Cashbuild (Pty) Ltd [FSBF2638-17], when it was restated that “negligence is the failure to comply with the standard of care that would be exercised in the circumstances by a reasonable person. Negligence can manifest in either acts or omissions”.
In the arbitration award of NUMSA obo Motsedisi Julia Tsilo v Ngwako Holdings (Pty) Ltd DRC/MINT 50247], it was emphasised that “The test for negligence was described by Driscoll C in the matter of Nkosi / Nampak (2010) 10 MEIBC at 8.14.1, as follows: The test for negligence is whether a reasonable person in the position of the employee would have foreseen the harm resulting from the act or omission, and would have taken steps to guard against that harm. The basis for the employee’s culpability is not the act or omission itself, but rather the lack of care or diligence that accompanied the act or omission. To warrant dismissal, the negligence must be gross, that is, if the employee was persistently negligent or if the act or omission was particularly serious. Where the consequences of a single act or omission are particularly serious, or when an employee holds a position in which negligence on a single occasion may have disastrous consequences, dismissal may be justifiable on the first occasion”.
The Supreme Court of Appeal had the following to say about gross negligence in the case of Transnet Ltd t/a Portnet v Owners of the MV Stella Tingas & Another [2003 (2) Sa473 SCA], “it follows, I think, that to qualify as gross negligence the conduct in question ……. must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care”.
In the final analysis, negligence can be viewed as ‘blameworthy poor work performance’, as there is proof, on a balance of probabilities, that the employee has tender q quantity and/or quality of performance which is less than the employer can prove the employee is capable of.
If, on the other hand, it cannot be proven that the employee’s poor performance cannot be proved to be due to the employee performing below a level of performance they are capable of, the poor work performance may be related to incapacity, rather than misconduct.
Who would have thought that your hairdo could lead to your dismissal? Well, the Department of Correctional Services concluded it did when dismissing a number of employees for wearing “dreadlocks”, Rasta style, and refusing to cut their hair when instructed to do so.
This matter was dealt with in the Labour Court case of Department of Correctional Services & another v POPCRU & others (Case No. CA6/2010).
A new Area Commissioner, who had been recently appointed, was of the view that discipline was lax, and that there was large scale non-compliance with departmental policies.
In particular, the Commissioner had concerns regarding poor compliance with security policies, inefficient acts of control, and compliance with the dress code in that certain employees mixed their uniforms and wore different hairstyles. A written instruction was then issued to all staff that they were required to comply with the dress code by attending to their hairstyles. Certain officers complied with the instruction, whilst others did not.
The Area Commissioner then wrote to the non-complying employees advising them that they faced suspension and granted them an opportunity to advance reasons why they should not be suspended.
The applicants then responded indicating that they had embraced Rastafarianism, and that the instruction to cut their dreadlocks “infringed their freedom of religion and constituted unfair discrimination on the grounds of their religion.” Other employees submitted that they wore dreadlocks for cultural reasons. One of the employees in particular, submitted that he wore dreadlocks because he had received a calling to become a traditional healer in accordance with his culture. Yet another of the employees submitted that his reason for wearing dreadlocks was related to him having a traditional sickness known as “Ntwasa”, and that his ancestors had instructed him to wear dreadlocks.
The employees were then suspended and charged with having contravened the Department of Correctional Services and disciplinary code and procedural resolution 1 of 2006, in that they had contravened the Department of Correctional Services dress code by wearing/keeping dreadlocks on official duty at Polsmoore management area. An alternative charge was that the applicants had failed to carry out a lawful order or routine instruction without just or reasonable cause by refusing to keep their hair in accordance with the dress code of the department of correctional services.
A disciplinary hearing was convened; the applicants were found guilty and dismissed with immediate effect.
Predictably the Labour Court held that whilst it may “accept the importance of uniforms in promoting a cultural discipline and respect for authority, we live in a constitutional order founded in a unique social and cultural diversity which because of our past history deserves to be afforded special protection. It is doubtful that the admirable purposes served by uniforms will be undermined by reasonable accommodation of that diversity by granting religious and cultural exemptions were justified.”
The Labour Appeal Court dismissed the claim and upheld the Labour Courts finding that the dismissal of the applicant was automatically unfair.
There are many misconceptions about the role and effect of probationary periods in employment contracts. It’s not surprising to hear employers conclude that probation periods pretty much give them carte blanche to dismiss probationers in the formative phase of an employment relationship.
The Labour Relations Act does provides that “Any person making a decision about the fairness of a dismissal of an employee for poor work performance during or on expiry of the probationary period ought to accept reasons for dismissal that may be less compelling than would be the case in dismissals effected after the completion of the probationary period”.
Make no mistake, the Labour Relations Act does indulge employers to some extent during probationary periods, but this relates to dismissal on grounds of poor work performance only when less compelling reasons for such dismissals are required than would be the case after probation.
This indulgence does not however extend to acts of misconduct during probationary period, be they suspected or proved.
It is important to remember that whilst the Labour Relations Act provides for dismissal on grounds of poor work performance on less compelling grounds than would be the case after probation, this only applies to poor work performance, and not misconduct.
In the Labour Court case of the South African Football Association v Ramabulana & others [JR2175/09], this very subject was central theme.
SAFA had applied to the Labour Court to have an earlier CCMA award in favour of the erstwhile employee, awarding him twelve months compensation due to his dismissal which was held to have been unfair, reviewed.
This applicant had been employed as head on a fixed-term employment contract for a period of two years, on a three months probationary period.
According to the applicant, during his third month of probation, he was called to a meeting with senior SAFA management and informed of criminal charges against him regarding the purported theft of money during a COSAFA tournament. The applicant denied any knowledge of this, where after he was presented with two options, resign immediately in which case SAFA would not press charges ahead with the criminal charges, or face the consequences of criminal charges being laid against him.
The applicant indicated he would not resign.
The applicant’s probation period was extended to a month. The applicant was arrested during the extended probation period, and released on bail after which he returned to work.
The applicant was dismissed at the end of the extended probation period on grounds of incompatibility (incapacity). This was promised on submissions that the preservation of the applicant’s employment was, in the circumstances, entirely intolerable given that the applicant was custodian of security with the respondent, and the public perceptions which would flow should his permanent employment have been confirmed, would have drawn considerably adverse attention to the respondent.
The Court did not buy this argument, and confirmed that ‘”the reasoning and the conclusion of the commissioner in the arbitration award cannot be faulted”. The court went further and derided SAFA for dismissing the applicant “based on suspicion which was never investigated by it nor did they even have the decency of affording the employee an opportunity of presenting his side of the story”.