False allegations of racism can lead to dismissal

False allegations of racism can lead to dismissal

Racism, in all its forms, is abhorrent, and if proved, is quite clearly grounds for dismissal.  That said, it is equally unpalatable for employees to level untrue allegations of racism.  This was a central theme in the recent CCMA arbitration award in NUMSA obo Baloyi, Gift and 3 others v O-Line (Pty) Ltd (Case number MEGA50052).

This circumstances which led up to this case were that, on the day in question, the employees were playing cards outside of the employer’s premises during their tea break. The Chief Executive Officer (CEO) of the employer stopped, with his vehicle at the gate, called at the employees, got out of his car and walked towards the employees angrily, allegedly using the f-word whilst addressing them.

On the evidence, the employees then attempted to talk to the CEO after the incident in his office, but he refused to give them a hearing.

The employees were subsequently issued with a notice to attend a disciplinary hearing.

On the morning of the scheduled disciplinary hearings, the employees submitted grievances to the Human Resource manager wherein they alleged that the CEO called them “Kaffirs” whilst admonishing them for playing cards outside the employer’s premises. This was in response to them having been charged with insubordination in that they did not adhere to an instruction that they should not play cards outside the employer’s gate.  The employees were found guilty of insubordination at the disciplinary hearing and issued with final written warnings.

The employees were then issued disciplinary hearings notices for making false allegations of racism against the CEO; they were found guilty and dismissed.

In the arbitration award, the Commissioner noted that “I have considered the evidence of both the respondent and the applicants’. The respondent witnesses testified that (the CEO) could not have called them in a racial derogative term since the applicants alleged that he called them the K-word in Afrikaans and that other Afrikaans words was utilized during this altercation. They argued that (the CEO) cannot speak Afrikaans but that he is English speaking. The applicants, on the other hand, stood by their claim that such racial terminology was used”.

The Commissioner continued that “The applicants were dismissed for deliberately supplying incorrect and /or falsified information related to an accusation the employees had made against the CEO, (who) to the effect that he addressed them with a racist slur (calling them K…..s), idiots and other swear words”, and that “It is common cause that the applicants’ made this accusation in the form of grievances on 17 October 2016 and this was confirmed during their disciplinary hearing on the same day. This was made during a disciplinary hearing for an unrelated allegation against the applicants”.

The CEO, whilst acknowledging that he was angry, and used the f-word, stringently denied using the k-word, and “denied that he can speak Afrikaans and that he would never address a person in Afrikaans since he is from Zimbabwe and is English speaking. He conceded that he was very angry with the applicants and that he possibly called them idiots and used (the f-word) during his address of the applicants but he never made any racial remarks. In addition, why would he make it in a language which he does not speak while he is angry. (The Commissioner) requested him to read the grievance and he struggled to pronounce “kom hierso”. Even the applicants during their own evidence testified that (the CEO) called them by saying ‘come here guys’”.

The CEO had not used the k-word, concluded the Commissioner, who held that “When analysing the facts before me in totality I arrive at the conclusion that the respondent has established that the applicants made false claims against the CEO and that the CEO never called them the K-word but the F-word. There was no racial or discriminatory language used towards the applicants when addressed by the CEO on 7 October 2018. It is clear from the evidence of Mr Radimpe that the NUMSA officials probably invented the racial defence on Saturday 15 October 2016 when they had further discussion regarding the applicants’ insubordination charges. It was clearly a defence since they advised Mr Radimpe to only make the allegations if the applicants were charged. In the event that the applicants were not charged, this allegation would never have seen the light of day”.

Quite rightly, the Commissioner, in upholding the fairness of the dismissal of the employees for making false allegations of a racial slur, noted that “The gravity of the charges were such that it could have caused the end of the CEO’s career at O-Line and cause severe reputational damage. The reputational damages of the respondent could also have been irreparable”.

Job applicants must come clean on criminal records

Job applicants must come clean on criminal records

A job applicant who confirms, on employment, that they do not have a criminal record, better be telling the truth.  If it is subsequently found that they were fibbing, and that they did in fact have a criminal conviction, they run the very real risk of dismissal.

The recent (7 May 2019) Labour Court judgment in Pamela Nomawethu Njikelana v Werner Kruger, the CCMA & the SA Civil Aviation Authority (Case number JR1834/17), dealt with this and related issues.

The employee had originally been employed as Human Resources generalist, on a fixed term contract of employment, from 1 August 2015, to 31 July 2016.  Thereafter, her contract was renewed on two consecutive occasions; the first from 1 August 2016 to 31 December 2016, and the second from 1 January 2017 to 31 March 2017.

Importantly, it was not disputed that prior to commencing employment with the employer, the employee had been required to undergo various pre-employment verification exercises to verify her qualifications, credit rating and criminal record.  During the course of her employment, in or about July 2016, the employer conducted a further criminal record check on the employee, which established that she in fact had a criminal record.  On 10 October 2016, the employee was invited to a meeting by the employer’s internal audit unit “during which she was requested to complete a forensic interview information sheet”, which she did, confirming once again that she had no past, or pending, criminal record against her name.

When the employer informed the employee of the fact that they had recently established that there was a criminal record against her name, she denied any knowledge of any criminal record, and undertook to approach the Pretoria Criminal Record Centre to check her criminal record status, where it was confirmed that she did indeed have a criminal record.  The “criminal record arose from an incident in 1990 when she was arrested and fined R150.00 for stealing sweets, chocolate and biltong”.

The employee then approached the Department of Justice to apply for the expungement of her criminal record.

The next key development in this case arose when the employee subsequently applied for a permanent Human Resources positon, which the employer had advertised.  She was interviewed and requested to complete a declaration form, in which she disclosed her criminal record, which she corroborated in a separate affidavit.

Needless to say, the employer notified the employee that her application was unsuccessful, and furthermore, that her contract would not be renewed.  The employee was aggrieved by this, and lodged an unfair dismissal claim with the CCMA, on the basis that she had a reasonable expectation of renewal or permanent employment.

In his award, the CCMA commissioner held that the employee had no valid claim of unfair dismissal on grounds of a reasonable expectation of renewal, as she “was appointed in a temporary position and this position no longer existed”.  When dealing with the employee’s dishonesty, the “commissioner rejected the applicant’s submission that during her interview, she had forgotten that she had a criminal record” as “it is highly improbable that the applicant did not remember during the interview the fact that she was arrested.  In all likelihood this would have been a traumatic experience and it is difficult to see how she could forget it”.

The arbitration award continued that “she kept quiet and only informed the respondent of the incident on 23 March, some five months after the first interview”.

The commissioner dismissed her claim that she had reasonable expectation of renewal of her fixed term contract, or to permanent employment.

Aggrieved by the arbitration award, the employee took it on review to the Labour Court arguing, in that he “had arrived at an award that no reasonable decision-maker could have arrived at”.

The Labour Court agreed with the CCMA commissioner that “the applicant’s argument that she harboured a reasonable expectation to be appointed on a permanent position is .. not sustainable”.  The judgment noted that “Section 186(1)(b) of the LRA covers instances where the employee alleges a reasonable expectation of renewal of a fixed term contract that has expired … it does not cover reasonable expectation of appointment in a permanent position subsequent to several renewals of a fixed-term contract”.

In conclusion, the judgment held that “in failing to come clean and to admit that there was a criminal record against her name, the applicant was dishonest” and for this reason “she could not have harboured an objectively reasonable expectation of the renewal of her fixed term contract, or permanent employment”.