Strong suspicion that an employee has committed misconduct, is a persuasive thing. So persuasive, in fact, that employers are frequently lulled into concluding that the suspicion is so compelling, that it proves employee guilt, of misconduct. Nothing could be further from the truth.
The fact of the matter is that alleged misconduct must be provable, with evidence, which proves that the employee is guilty /on a balance of probabilities’. In simple terms, this means that the employer must lead enough evidence to prove that the probabilities that the employee is guilty, are greater than the probabilities that the employee is not guilty. Put differently, proving guilt in disciplinary hearings requires employers to have proof that the employee probably committed a blameworthy act, or on occasion, omitted to act in circumstances where the omission to act can be held to be blameworthy.
Proof of suspicion fails to meet this requirement, and our courts have been quick to confirm this, as was the case as far back as 1988 when, in Moahlodi v East Rand Gold & Uranium Co Ltd (Industrial Court: 1988), it was held that “mere suspicion does not satisfy the test of proof on a balance of probabilities”.
The landmark, and most often quoted case law on this subject is the Labour Appeal Court judgment in Mbanjwaand Senzeni v Shoprite Checkers (Pty) Ltd & 2 others (Case number DA4/11). The case involved an allegation that the employee had attempted to under-ring items being purchased by a customer who appeared to be an accomplice of the employee”.
To begin with, a key employer witness acknowledged, under dross-examination, that “the whole case against the appellant was based on her suspicion in relation to what she had seen the appellant doing”, continuing that “Without the contravention of any rule and without any reprehensible conduct by Senzeni on 27 April and 28 April 2006, we are left with Vino’s substance of her suspicion on which she subjectively concluded that Senzeni attempted to under-ring the items brought to her till by Lindiwe”.
The judgment critically further noted that “It is my opinion that whereas, there might have been grounds to suspect Lindiwe’s conduct on 28 April 2006, but to suspect that Senzeni was implicated in the attempt to under-ring the respondent’s items was based on Vino’s figment of imagination”
In analysing and evaluating the evidence led, the Labour Appeal Court held that “It is trite that an employer bears the onus to prove, on a balance of probabilities, that the misconduct was indeed committed by an employee concerned. Where the employer is suspicious that the employee, through the latter’s movements or conduct, may have some dishonest intentions, the employer cannot justifiably rely on that suspicion as a ground to dismiss the employee for misconduct because suspicion, however, strong or reasonable it may appear to be, remains a suspicion and does not constitute misconduct. There needs to be tangible and admissible evidence to sustain a conviction for the misconduct in question”.
The Labour Appeal court judgment in Dion Discount Centres v Rantlo (LAC: 1995) was quoted as having held that “It was argued by appellant’s counsel with reference to Moletsane v Ascot Diamonds (Pty) Ltd (1993) 6 LLC 15 (IC) and EATWCSA v The Productions Casting Co (Pty) Ltd (1988) 9 ILJ 702 (IC) that the termination of respondent’s employment was fair as there was a strong suspicion that respondent had participated in the 4 transactions. The presiding officer in the Moletsane matter relied on the judgment in EATWCSA v The Production Casting Co (Pty) Ltd as authority for the finding that ‘it was not unfair for the respondent to dismiss the applicant in the particular circumstances of this case on a strong suspicion of diamond swopping’. I do not find support for this view in the latter judgment. The test at all times remains one of balance of probabilities. Reasonable suspicion or strong suspicion is not adequate to terminate the employment relationship”.
Perhaps the most damning crushing remark made by the judge in the Shoprite Checkers case was that “The high-water mark in this case is nothing but mere suspicion on the part of Pillay that the appellant committed the misconduct charged. There was simply no shred of evidence to buttress or lend any credence to the allegation of the misconduct. It is beyond my comprehension why the appellant was charged for misconduct at all”.
So, there you have it. Employers rely in suspicion alone, to prove guilt in misconduct cases, at their peril.
Sections 193(1) and (2) of the Labour Relations Act, lists a hierarchy of remedies available to employees who are found to have been substantively unfairly dismissed in arbitration hearings. Retrospective reinstatement is a remedy limited to cases of substantively unfair dismissal. On the other hand, identified procedural unfairness qualifies for financial compensation, as opposed to reinstatement, as a remedy.
Sections 193(1) and (2) of the Labour Relations Act reads that “Remedies for unfair dismissal and unfair labour practice.– (1) If the Labour Court or an arbitrator appointed in terms of this Act finds that a dismissal is unfair, the Court or the arbitrator may – (a) order the employer to re-instate the employee from any date not earlier than the date of dismissal; (b) order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or (c) order the employer to pay compensation to the employee. (2) The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless—(a) the employee does not wish to be re-instated or re-employed; (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or (d) the dismissal is unfair only because the employer did not follow a fair procedure”.
However, not every employee who is held to have been substantively unfairly dismissed, is granted retrospective reinstatement, even though that is precisely the remedy they sought.
We know that section 193(2) leaves little dispute that retrospective reinstatement ‘must’ be applied in cases of substantively unfair dismissal, yet exceptions are none the less made for cases in which the unfairly dismissed employee themselves do not seek reinstatement, or in cases where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; (c) it is not reasonably practicable for the employer to re-instate or re-employ the employee”
In the recent Labour Court judgment in Sinenhlanhla Precious Mthetwa v the CCMA & 2 others (Case number JR1806/18), the Acting Judge was required to pass judgement on whether an arbitrator’s election not to select a retrospective reinstatement remedy in a case where the arbitrator held that the employee had been substantively unfairly dismissed, and when the employee sought reinstatement.
The employee had pleaded guilty at a disciplinary hearing, to various allegations of serious misconduct, including assault, intimidation and harassment. She was the dismissed. She the challenged the fairness of her dismissal at the Motor Industry Bargaining Council, at which her dismissal was held to have procedurally and substantively unfair.
After having that she sought the remedy of compensation in the pre-arbitration minutes, she altered her claim to that of retrospective reinstatement at the commencement of the arbitration hearing.
When all was said and done, the Commissioner granted the employee maximum compensation, as opposed to the retrospective reinstatement she sought. The employee then took the judgment on review to the Labour Court, arguing that the Commissioner had “misconducted herself when she deviated from the primary remedy of reinstatement which the Applicant sought ..”.
Not so, said the Judge, who held that the review application was to be dismissed, holding further that he was left with the sense that the Commissioner’s “value judgment” was not “far-fetched or one which a reasonable decision-maker could not have arrived at”.
So why did the Commissioner and the Judge conclude that the primary remedy of retrospective reinstatement should not apply in this case? Various reasons were articulated. To begin with, the employee was already on a final warning for misconduct, and the employer had sponsored anger management support for the employee in the past, which had apparently failed to be effective.
The Commissioner had, more specifically, concluded that “the applicant’s tenure (of employment) would be unsafe and insecure should she be retrospectively reinstated”, a conclusion which the Judge noted “is not explained”.
Be that as it may, this judgment aligns with prior case law which gives effect to parts of section 193(2) of the Labour Relations Act, which entitles arbitrators to deviate from the primary remedy of retrospective reinstatement, in cases of substantively unfair dismissals.
Our labour courts still frequently hear cases in which employers have prematurely retired employees. In the main, this has to do with employers either retiring employees prior to the correct normal retirement date, or imposing a retirement age when none otherwise exists.
This emphasises the importance of employers ensuring that they have a prescribed, normal retirement age. Provision for a company prescribed normal retirement age is most often found in the contract of employment, which confirms, for example, that an employee will retire when he, or she, reaches the age of sixty-five.
Section 187(2)(b) of the Labour Relations Act confirms that “a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity”.
This must be contrasted with section 187(1)(f) which provides that “a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to …. age”.
However, many employers do not make confirm their applicable normal retirement age anywhere what so ever. It’s not confirmed in any contracts of employment, and there is no policy on the company retirement age. If this is so, clues need to be sought on what the applicable retirement age is. From time to time, the clue can be found in the rules of a benefit fund, such as a pension or provident fund. This was the case is the recent Labour Court matter in NTM obo Israel Mothapo v Interwaste (Pty) Ltd [Case number J791/16] in a judgment passed on 13 November 2019.
In this case, the employer had retired the employee two and a half months after he had reached the age of sixty. He was the offered a 12-month fixed-term contract of employment. The employee objected to this, claiming that this was a “forced retirement”, as his benefit statement confirmed his normal retirement date was recorded as being 30 June 2020, when he would turn sixty-five.
The employer replied that the “retirement age is 60 as per the normal practice in our business… While the benefit statement makes provision for retired at 65, it does not (and cannot) enforce the company to retire its employees at that age – it is a company prerogative”. The employer’s representative argued that the employer’s reliance was placed on the norm as opposed to an agreement.
The Labour Court was underwhelmed by this argument, holding that “As pointed out, the respondent relies on the norm and not an agreement. The LAC in Rubin Sportswear v SACTWU and Others4 made it clear that an employer may not just wake up and say a particular age is a norm. The Court specifically stated the following: “A retirement age that is not an agreed retirement age becomes a normal retirement age when employees have been retiring at that age over a certain long period – so long that it can be said that the norm for employees in that workplace or for employees in a particular category is to retire at a particular age. An example would be where, without any formal agreement, employees in a particular category have over 20 years been retiring at a particular age without fail. The period must be sufficiently long and the number of the employees in the particular category who have retired at that age must be sufficiently large to justify that it is a norm for employees in that category to retire at that age. If the period is not sufficiently long but the number is large, it might still be that a norm has not been established. And if the period is very long but the number of employees in the particular category who have retired at that age is not large enough, it might be difficult to prove that a norm has been established.”
The judgment went on to bluntly note that “It is apparent to me that this defence of 60 years being a norm is nothing but an afterthought”.
In this case, it was ultimately held in the judgment that “Accordingly, this Court is not satisfied that the respondent succeeded in showing that 60 years is a normal retirement age. On the probabilities, account taken of the benefit statement, the agreed retirement age between the applicant and the respondent is age 65. It being common cause that the applicant had not reached the agreed age at the time of termination, his dismissal is automatically unfair”.
The employee was awarded twenty-four months’ remuneration in compensation.