At the end of the day, managers and supervisors are paid to manage and supervise two things, employee conduct and employee performance. From an employment law point of view, the conduct aspect of management becomes important when the employee’s conduct becomes misconduct. Misconduct, is a blameworthy act or omission, which requires employers to trigger a disciplinary process.
On the other hand, the type of poor performance, addressed in the Labour Relations Act, is the non-blameworthy, incompetence specie of poor performance. When all is said, and done, poor performance is either blameworthy, or not blameworthy. Put differently, sometimes the employee is blameworthy for their poor performance, and sometimes they aren’t.
If it can be proved that the employee is blameworthy for their performance, a disciplinary procedure is followed, because the employer is able to prove that the employee was capable of better performance than they delivered, importantly, in circumstances where there were no extraneous factors causing the poor performance, over which the employee had no control.
In circumstances where it cannot be proved that the employee is blameworthy, or at fault for, his or her poor performance, there is no misconduct; rather, there is incapacity; meaning that the employee’s performance is poor, but for reasons beyond their control. The Labour Relations Act obligates employers to follow a counselling, not misconduct, procedure, in an incapacity-related, scenario of poor work performance.
In fact, there are even occasions where there are elements of both incapacity and misconduct in an employee’s poor performance.
The Labour Court recently (19 June 2019) passed judgment in the case of Moneyline Financial Services (Pty) Ltd v Tsientsi Chakane & 1 other (Case no: JR2454 /17). This was a case which dealt with a dispute relating to the management of poor work performance.
The background to this case, as described in the judgment, was that “the respondent employees failed to achieve the performance targets between September 2016 and January 2017. On 12 October 2016, the first letter warning the respondent employees of poor work performance was issued in respect of the month of September 2016. On 9 November 2016, a second letter then serving as a final ultimatum was issued in respect of the respondent employees’ poor work performance for the month of October 2016. The respondent employees were afforded the opportunity to make written representations wherein they were to give reasons for failing to meet the performance targets. The applicant (the employer) found their explanation unacceptable. On 18 January 2017, the respondent employees were served with the notices to attend performance enquiries respectively”, and ultimately dismissed for poor work performance.
At the CCMA, the arbitration award held that the dismissals were substantively unfair as “the dismissal was not an appropriate sanction as training could have been a reasonable alternative. He accepted that the reasons proffered by the respondent employees for non-performance as genuine and plausible given the context of the industry they operated in”.
The employer took this arbitration award on review to the Labour Court, which dismissed the review application and upheld the arbitration award’s finding that the dismissals for poor performance were substantively unfair.
In so doing, the judgment emphasised what was held in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others  1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC), namely that “In order to find that an employee is guilty of poor performance and consider dismissal as an appropriate sanction for such conduct, the employer is required to prove that the employee did not meet existing and known performance standards; that the failure to meet the expected standard of performance is serious; and that the employee was given sufficient training, guidance, support, time or counselling to improve his or her performance but could not perform in terms of the expected standards. Furthermore, the employer should be able to demonstrate that the failure to meet the standard of performance required is due to the employee’s inability to do so and not due to factors that are outside the employee’s control”.
The judgment continued that “In the present case, the applicant failed to show that the respondent employees were given sufficient training, guidance, support, counselling and reasonable time to improve their performance. The respondent employees had genuine concerns that were outside their control and could have been managed with the assistance from the applicant. Clearly, the commissioner correctly found that the applicant failed to explore alternative measures short of dismissal, like training. It follows that the applicant failed to show that the dismissal of the respondent employees was an appropriate sanction”.
Polygraph and truth verification tests have been around for some time. You won’t need to look far to find someone with an opinion on these tests, with those claiming that they are all but infallible, to those who doubt their accuracy. Regardless, these tests are often administered by employers in the investigation of, primarily, dishonesty misconduct cases.
We know from years of case law that polygraph and truth verification tests, in their various guises, can be used as corroborating evidence, which supports more direct evidence, but that such test results will never be enough, on their own, to meet the burden of proof on a balance of probabilities.
But what if an employee refuses to consent to undergoing a polygraph, or truth verification, test? Does this amount to misconduct? Is such refusal a dismissible offence?
This very issue was dealt with in a recent (22 May 2019) Labour Court judgment in Bidvest Protea Coin (Pty) Ltd v Mbongeni Ernest Ngcobo [Case number 260/17].
The judgment outlined the background facts – “In terms of the employment contract between the parties, the first respondent (the employee) consented to undergo a polygraph or truth verification test as and when requested to do so by the applicant (the employer). The applicant (employer) conducts these tests randomly and on any selected employees”.
So, first and foremost, the employee had signed a contract of employment which specifically, amongst other things, obligated the employee to undergo a polygraph or truth verification test, when requested to do so by his employer.
However, sometime later, the employee was selected randomly for such a test, and “On the scheduled day of testing, the first respondent was provided with the consent form to complete so that the testing could be conducted. He refused to complete the consent form in spite of being given an opportunity to consult his attorney. As a result, he was charged in a disciplinary hearing with breaching his employment contract and subsequently dismissed. He duly referred an unfair dismissal dispute to the third respondent which was arbitrated by the second respondent (arbitrator)”.
At arbitration, the arbitrator held “in his award, found that the consent form provided the first respondent with a choice to refuse to undergo the polygraph test. The arbitrator found that the first respondent, by virtue of his employment contract, was being coerced by the applicant to undergo the polygraph test. Therefore, according to the arbitrator, the first respondent had not refused to undergo the test in terms of his employment contract as it compelled him to do so but only refused to sign the consent form allowing the test to be conducted. The arbitrator held that the second respondent had not refused to undergo the polygraph test on 11 May 2017 and thus his dismissal was substantively unfair and reinstated the first respondent”.
The employer challenged the arbitration award, taking on review to the Labour Court, arguing that “the arbitrator ignored the fact that the first respondent had consented to undergo polygraph tests in terms of his employment contract and that his refusal to sign the consent form amounted to breach of his contractual obligations”.
The Labour Court agreed with the employer – “I agree that the arbitrator ignored the applicant’s evidence and/or did not properly weigh it up. This is because the applicant’s main witness had testified that the examiner could not conduct the testing without the consent form being signed as it is a prerequisite. The purpose of the consent form was to allow the examiner to amongst others, put sensors on one’s body. This had been explained to the first respondent. The arbitrator also ignored the fact that the first respondent had also in his employment contract, consented to undergo polygraph tests. I fail to understand on what basis the arbitrator found that the first respondent was coerced into being tested by the very same employment contract he had voluntarily entered into”.
Quite rightly, the judgment ordered that “The arbitration award issued by the second respondent (the arbitrator) is reviewed and set aside. The arbitration award is substituted with an order that the third respondent’s dismissal was fair”.
This judgment reminds us that it is important to include compulsory polygraph tests, when requested, in contracts of employment are entered into at the commencement of an employment relationship. In the absence of such up-front agreement, it is arguable that an employee can reasonably refuse to undergo such tests.
As uncompassionate as it may sound, employers are not obligated to employ an employee, who is habitually absent on grounds of ill health, indefinitely. ‘Incapacity’ is one of the three species of dismissal in our law, with the other two being ‘misconduct’ and ‘operational requirements’ (retrenchments, in the main).
Section 11 of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal), gives specific guidelines on what is expected of employers who dismiss employees on grounds of ill health or injury. It’s worth looking at what this section tells us, it reads “Any person determining whether a dismissal arising from ill health or injury is unfair, should consider (a) whether or not the employee is capable of performing the work; and (b) if the employee is not capable – (i) the extent to which the employee is capable to perform the work; (ii) the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and (iii) the availability of any suitable alternative work”.
Make no mistake, quite rightly, employers need to tread carefully when contemplating the dismissal of an employee on grounds of ill health or injury. Let’s face it, we all get sick at times, and may befall an unavoidable injury, and we would want our employer to show some patience and compassion with us. That, in a nutshell, is what the Labour Relations Act tells employers to do, before contemplating dismissal.
Whilst some employers have temporary and permanent risk benefits which are available to their employees in circumstances of this nature, it is not always the case. Many employers do not have such risk benefits for staff, as cost to company remuneration structures become more common-place. On the other hand, some employers simply can’t afford to offer such risk benefits to their staff.
So, if an employee is excessively absent, on grounds of ill health or injury, and there are no risk benefits, what are the options available to the employer? Section 11 of Schedule 8 of the Labour Relations Act, largely provides the answer.
So, does case law, which help us understand how the relevant legislation and the Code of Good Practice, are to be interpreted and applied in practice.
The Supreme Court of Appeal, in Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (2014) 35 ILJ 406 (SCA), confirmed that “an employer is not expected to tolerate an employee’s prolonged absence from work for incapacity due to ill health. And it may, if it be fair in the circumstances, exercise an election to end the employment relationship”.
A recent Labour Appeal Court judgment (27 June 2019) casts more light on this subject. It was the case of Parexel (Pty) Ltd vChakane & others (Case number JA39/2018) which, amongst other things, noted that “It is self-evident that whether an employee is willing and able to work and when she may be in a position to do so are material considerations to which regard must be had when considering an employee’s incapacity, whether she has been absent from work for an unreasonably long period of time and whether alternatives to dismissal exist”.
The judgment continued that “The appellant (employer) was not required to hold the employee’s position open for her indefinitely when she had failed to provide any clear basis as to the reasons for and anticipated extent of her continued absence”.
The employer held an incapacity hearing to assess the viability of the ongoing employment of the employee, on grounds of incapacity. In this regard, the Court held that “The appellant (employer) proceeded by way of an incapacity enquiry to determine whether the employee’s absence from work had been unreasonably long or not. Implicit in such a determination was a consideration of the reasons advanced by the employee for her absence and the extent of such absence. Since very distinct reasons had been provided by different doctors for the employee’s absence, the appellant requested the employee to provide it with a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within such recovery could be anticipated. Yet, in spite of offers of assistance made by the appellant to the employee, no such medical report was provided by her”.
In the final analysis, employers must make reasonable accommodation of ill health or injury related employee absenteeism. Indeed, the job specification and work environment, if possible, should be modified the accommodate the employee. Suitable alternative positions should also be considered, if such options exist.
That said, employers are not obligated to endure prolonged ill health or injury absenteeism indefinitely.
All employees have a common-law obligation to their employers to promote and protect the interests of the employer, at all times. This includes informing management of any planned or actual acts of misconduct they have knowledge of. It could, for example, include knowledge of theft, pilferage and fraud.
That said, it’s widely known that employees are often ‘in the know’ when it comes to acts of misconduct committed by other employees, yet they don’t bring it to management’s attention. The reasons for not doing so are varied. An employee may consciously choose not to inform management of misconduct they are aware of, for fear of reprisals from the instigators. It is also quite possible that an employee will not divulge misconduct they are aware of, as they themselves have an axe to grind with the employer.
Regardless, employees have a positive duty to inform management of misconduct of which the employer may be unware; failure to do so is a material breach of such employee’s duty of good faith to their employer.
The CCMA and labour courts have dealt with derivative misconduct on numerous occasions. Earlier this year, the CCMA in Thabiso Ngakane v Wilmar (Pty) Ltd [GAJB9538-18] noted that “While a dismissal on the grounds of derivative misconduct has been sanctioned by the Labour Courts, the onus remains with the employer to prove that the employee was guilty of such misconduct. In that regard the employer would need to produce evidence that there was a reasonable probability that the employee had information that would assist the employer in identifying those guilty of misconduct, and had withheld such information”.
In yet another example, in NUMSA v Commissioner Leon Pillay & others [D02-17], the Labour Court described derivative misconduct as being “a case in which the employer wants to rely on misconduct that is not directly related to the employee’s own wrongdoing, but is based on the employee not providing information that is needed to identify other wrongdoers in circumstances where speaking up is required to maintain the trust relationship, that constitutes a quite distinct ground of misconduct, applicable in a context where not speaking up can destroy an employment relationship”.
The notion of derivative misconduct most recently came to a head in at the Constitutional Court which last month, on 28 June 2019, delivered judgment in the long-standing dispute involving NUMSA obo Khanyile Nkanezi & others v Dunlop & others [CCT202/18].
In short, a violent, protected strike commenced on 22 August 2019. Some perpetrators of violence could be positively identified, others could not. The CCMA Commissioner in the arbitration award noted that “The situation that prevailed in Induna Mills Road during the course of the strike was highly relevant to the derivative misconduct issue. If any of the applicants were present in the group of strikers who . . . [committed the acts of violence] they would either have been perpetrators of principal misconduct or be liable for derivative misconduct on the basis that they knew who the perpetrators of the misconduct were and failed to disclose that information to the respondent”.
In the final analysis, the existence, or otherwise, of derivative misconduct on the part of strikers who participated in the protected strike, but who could not be identified as perpetrators of violence, became the subject matter of a CCMA arbitration hearing, subsequent Labour Court and Labour Appeal Court cases, and ultimately a Constitutional Court matter.
The Concourt identified the source of the concept of derivative misconduct in highlighting that “ Although not mentioned by name as derivative misconduct, the roots of the doctrine lie in an obiter dictum (non-binding statement) by Nugent J in FAWU – In the field of the industrial relations, it may be that policy considerations require more of an employee than that he merely remained passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action” [Food & Allied Workers Union v Amalgamated Beverage Industries Ltd  ZALAC 1].
When all is said, and done, the ‘takeaway’ from the Concourt judgment is that whilst a derivative duty to disclose exists “As we have seen, this duty was sourced in the contractual duty of good faith without any reference to an employer’s reciprocal good faith obligations. In accordance with the conclusion employees’ safety should have been guaranteed before expecting them to come forward and disclose information or exonerate themselves. That was not sufficiently done”.
In short, this means that derivative misconduct, in strike scenarios, and probably all others, requires employers to ensure that employees who disclose knowledge of misconduct on their colleagues, are safeguarded from harm. This is perplexing for employers, as it now suggests that employees have a valid defence to derivative misconduct allegations, which relies solely on fear of intimidation or harm, regardless of the circumstances.
We know that too severe a sanction in a disciplinary hearing amounts to substantive unfairness.
The dilemma facing employers in the selecting of a sanction, and more especially the sanction of dismissal, was highlighted in the recent (13 June 2019) Labour Appeal court judgment in Hosea Mushi v Exxaro Coal (Pty) Ltd Grootgeluk Coal Mine (Case number JA62/2018.
The facts of the case were quite straight forward, with the background perhaps best summed up in the judgment – “The appellant had been employed by the respondent, Exxaro Coal (Pty) Ltd, at Grootegeluk Coal Mine for 24 years when he was dismissed. On 10 March 2015 at around 22h50, he was on duty driving an oversized coal haul truck, the wheel size of which exceeded the height of two adults. He reported to his foreman that the shovel operator was loading the truck in an unsafe manner. The foreman instructed the appellant to continue loading and undertook to observe the loading process. Shortly thereafter the foreman informed the appellant via radio that he would board the truck at the loading area. The appellant refused to let the foreman board the truck at this area. As the foreman walked towards the loading area the appellant moved the truck forward causing the foreman to have to move out of the way.
At the ensuing disciplinary hearing, the appellant admitted that he had behaved improperly, but not that he had undermined the authority or threatened the life of the supervisor. The disciplinary code, which was stated to be a guideline, provided for a final written warning for misconduct of the nature committed. The appellant was nevertheless dismissed from his employment on 29 April 2015, for having refused to obey an instruction of a foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck after the foreman was proceeding towards it”.
So there you have it. Unfair said the employee, who referred an unfair dismissal claim at the CCMA where “the parties agreed that the misconduct committed was not in dispute and that the issues for determination by the arbitrator were the appropriateness of the sanction and the issue of consistency since the foreman had not been disciplined”.
I short, the arbitrator agreed, with the arbitration award stating that “‘The three charges are mutated of one another. The number of the charges by mutating them does not make the act to be more severe than it would ordinarily be. In any event, there is no dispute about the fact that it is not a dismissible offence at first instance. The respondent is not correct when it argues that it has a zero-tolerance attitude towards an offence of this nature.’
In finding the sanction of dismissal imposed on the appellant to be inappropriate, the arbitrator had regard to the fact that the appellant had not been charged with gross insubordination, there were no aggravating circumstances present to prove that progressive discipline was inappropriate, the appellant had a long period of service, a clean service record and had shown remorse for his conduct. The dismissal was found to be unfair and the appellant was reinstated retrospectively into his employment with the respondent, with no loss of remuneration and back pay awarded in the amount of R77 398.72. A final written warning was imposed on the respondent operative from the date of his reinstatement, to expire on a date as prescribed by the respondent’s disciplinary code”.
A Labour Court review, however, disagreed with the Commissioner, and held that “The Court took the view that it did not matter that the misconduct committed by the appellant had not been termed “gross” insubordination and that since the appellant had admitted endangering the life of the foreman, it was inconceivable that dismissal was not a fair sanction. The award of the arbitrator was therefore set aside on review on the basis that it was so unreasonable that no other reasonable arbitrator could have come to the same conclusion. The award was substituted with an order that the dismissal of the appellant was fair, with no order as to costs made”.
The Labour Appeal Court, in turn, disagreed with the Labour Court, holding that “While health and safety issues, particularly in the mining industry, is of paramount concern, no evidence was put up to show that the foreman’s life was endangered as a result of the appellant’s conduct. The appellant admitted that he had erred in his conduct and showed remorse for it. The arbitrator’s finding that the three charges related to the same misconduct did not amount to an irregularity in the conduct of proceedings when regard is had to nature of the misconduct, which the parties had agreed to be common cause. In addition, the failure to charge the appellant with “gross” misconduct did not alter the nature or degree of the misconduct committed on the facts of this matter. Nevertheless, the arbitrator had regard to the material before him in the manner he was required. This included that the respondent had a clean disciplinary record, long service and the disciplinary code recommended a final written warning for the type of misconduct committed. Endorsing the concept of corrective or progressive discipline, the arbitrator arrived at the conclusion that the imposition of the sanction of dismissal was too harsh”.