Not every case of assault should be met with dismissal

Assault is an understandably emotionally charged, category of assault, which more often than not, justifies dismissal.  It need not however always warrant dismissal.

In the arbitration award in SACCAWU obo A. Carolus v Freshmark (Pty) Ltd [Case number 16835-18], it was noted that “There is no doubt that the rule against assault is an important one. An employer is obliged to provide its employees with a safe working environment and an assault by one employee on another (whether a permanent employee or contracted worker) causes a breach of this duty. For this reason, the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) lists assault as one of the valid grounds for dismissal for a first offence, with no requirement for prior warnings”.

In Bombela Operating Company (Pty) Ltd and Jackson Mthukwane, NO & others JR 1922/13 the Labour Court held that an “assault takes a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied. In this case, there was such application of physical force. By its very nature, assault is a serious form of misconduct. This however does not imply that every case of assault should be met with dismissal, in that it acknowledges that defenses such as provocation may negate the unlawfulness of that conduct “. In this case, the Court concluded that the order of reinstatement should have been accompanied by some form of sanction, and upheld the reinstatement of the employee, ordering that he be issued a final warning, rather than being dismissed.

In a recent arbitration award (21 January 2020) the CCMA upheld the notion that whilst assault is clearly a form of gross misconduct, it will now always warrant dismissal.  The arbitration award in Petheni Andrews Mhlabeni v Rainbow Chicken Farms (Pty) Ltd [Case number NWRB2867-19], the employee, a machine operator, had been dismissed for assault.

One of the employee’s colleagues had grabbed him by the lapel of his coat, after which he then struck him in response.  As noted in the judgment, “The footage clearly shows (the colleague) grabbed (the employee’s) coat. (The employee) retaliated by striking (his colleague) with both hands on either side of his head. Both then disengaged. Had (the employee) then struck (his colleague) I would have no hesitation in agreeing with the Respondent that dismissal was the appropriate penalty. However, I am required to find whether the sanction of dismissal was fair in these circumstances”.

That said, John Grogan in his book, Dismissal Juta & Co. Ltd Second Edition 2014 states that, “assault is generally accepted as a valid ground to dismiss the assailant? The legal requirements for the offence are the intentional and unlawful application of physical force, however slight, to the body of the complainant, or threat that such force will be applied. In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship between the employee and the complainant, and the effect of the assault on the interpersonal relations and the business of the employer.”

Like pretty much all misconduct cases, each individual assault case needs to be assessed on its own merits.  No two cases are the same; they may be at face value, but on closer scrutiny, each case has its own unique set of circumstances.

Dismissal for assault was also considered too harsh in the MEIBC arbitration award in NUMSA obo A. Ntlabezi v Betafence SA (Pty) Ltd [Case number MEWC 10814] in which it was held that “on a balance of probabilities that Ntlabezi is guilty of a minor assault after extreme provocation from Swartz. However, such provocation was not taken into account by the employer and a sanction short of dismissal should have been applied”.

Professional advice should be sought if in doubt as to the seriousness of such cases.

A stratagem of dishonesty and deceit justifies dismissal

A stratagem of dishonesty and deceit justifies dismissal

A recent 13 February 2020 Labour Appeal Court judgment in Autozone v Dispute Resolution Centre of Motor Industry & 2 others (Case number JA52/2015), it was confirmed that the attempted theft of R30.00 by an employee, does indeed amount to misconduct if such a severe nature as to conclude that the trust relationship is thereby broken beyond repair, justifying the dismissal of the employee.

This is not the only judgment which confirms that dishonesty involving relatively small sums of money, or items of relatively small monetary value still, frequently justify dismissal.

Over time, there has been much debate about whether, or not, the value of money or good stolen by an employee, has any bearing on the sanction to be imposed.

The Autozone Labour Appeal Court judgment, by and large, reinforces the judgment in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at para 16 – 17, where the judge found that in relation to the consumption of one 250 ml bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”.

A similar approach was adopted in the Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 at paras 38 – 41 where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”

The Autozone Labour Appeal Court judgment addressed the same issue, and the rights of employers faced with employees who display “a stratagem of dishonesty or deceit”.

The facts of the case were quite simple.  The employee in question had been employed by the employer as a driver for approximately six and a half years.  On a given day, he was instructed to employ casual labour to “clean up waste and rubble at the of the store”.  The employee then did so, after which the Regional Operations Manager, in the presence of the employee, informed the three casual labourers that they would each be paid R50.00 for the task.  Once the task was completed, the Regional Operations Manager, in the presence of the Branch Manager of the store, instructed the employee to obtain R150.00 from the cashier to pay the three casual labourers.

However, the employee approached the cashier and requested R180.00, not R150.00.  The three casual labourers were unhappy with only receiving R50.00 each for the task and approached the Branch Manager to complain of this.

The Branch Manager then confronted the employee, and asked him why he had requested R180.00 from the cashier, but only paid R150.00 over to the casual labourers.  The employee then took the remaining R30.00 out of his pocket, “but did not provide an explanation at that point”.  He later explained that “he had acted on his own initiative” to withhold the additional R30.00, until the work was complete; according to the employee, two “things” had apparently not been emptied to his satisfaction.  The three casual labourers were then given the additional R10.00 each by the employee.

The employer dismissed the employee, after convening a disciplinary hearing.  At arbitration, the CCMA upheld the fairness of the dismissal.  However, on review, the Labour Court held that “there is no evidence that shows that the conduct for which the employee was found guilty of impacted on the relationship of trust between the parties”, and that “because there was no proof that the trust relationship between the parties had broken down”, the dismissal was substantively unfair, and the employee was reinstated on review, with a written warning.

The Labour Appeal Court disagreed, and quite rightly held that “Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty.  The employer thereafter will be hard pressed to place trust in such an employee”.

And perhaps most tellingly, the judgment continued that “the operational requirements of the employer alone, therefore, may very well justify dismissal … the nature of the offence and the manner of its commission support a conclusion that the continuation of the (employment) relationship had become intolerable”.

The employer appeal was upheld, and the dismissal of the employee was declared substantively fair.

The chasm between regret and remorse

An employee may regret having committed an act of misconduct, but they may not be remorseful for having done so.  This distinction is important when considering both in the context of mitigating circumstances, after an employee has pleaded guilty, or been found guilty.

Item 3(5) of Schedule 8 of the Labour Relations Act (Code of Good Practice: Dismissal) reads that “When contemplating 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), the nature of the job and the circumstances of the infringement itself”.  ‘Mitigating circumstances’ if you will.

The same considerations would apply in the selection of a sanction in less offences.

‘Regret’ and ‘remorse’ are also factors to be considered when establishing mitigating circumstances, prior to selecting an appropriate sanction to be imposed.  But they are quite different concepts, which should not be confused.

This was highlighted in the Supreme Court of appeal judgment involving The State v Phakamani A Nkunkuma & 2 others (SCA: 101/2013), which held that “
‘[13] . . . There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus, genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions”.

In The Foschini Group (Pty) Ltd v Marie Fynn (Labour Appeal Court: DA1/04), it was held that “It would in my view be difficult for an employer to re-employ an employee who has shown no remorse.  Remorse is much, much more than regret.  You can regret committing the act of misconduct, but not be remorseful.

As was put in the Labour Court in Toyota SA Motors (Pty) Ltd v the CCMA & 3 others  (Case No: D600/11) “remorse is a complex emotion, a mixture of shame and regret for the apparent victim. But supposed remorse may as well be linked to the perpetrator’s own sense of regret that it happened at all and that he got caught”.

The notion of remorse was also dealt with in the Labour Court judgment in Blitz Printers v CCMA & 1 other (JR 1782/2012), where it was held that “The fact that an employee shows remorse for his or her actions and takes responsibility for his or her actions may militate, depending on the circumstances, against imposing the sanction of dismissal. The converse also applies, dismissal may be an appropriate sanction where the employee commits an act of dishonesty, falsely denies having done so and then shows no remorse whatsoever for having done so. It is also important to point out that the respondent had persisted with her lying not only in the course of the investigations but also at her disciplinary hearing and in her sworn testimony before the arbitrator”.

Remorse can be likened to contrition.  A lack of remorse will typically confirm that the trust relationship is broken beyond repair, thereby justifying a sanction of dismissal.  It should also be borne in mind that an admission of guilt does not, in and of itself, amount to an expression of remorse.

As noted in the Labour Court judgment in Bongani Wellcome Rakhivhani v South African Police services & 2 others (Case number: JR1158 /13) “Genuine remorse contemplates an unconditional acknowledgement of the wrongdoing, a plea for forgiveness, and an undertaking that the misconduct will not be repeated if the employee is permitted to remain in the fold of the employment relationship”.

Theft of relatively low cost items still typically warrants dismissal

Theft of relatively low cost items still typically warrants dismissal

One of our multi-national clients recently lamented the fact that, by a country mile, they experience the highest number of theft-related and dishonesty cases in South Africa, than anywhere else in the world.  The unfortunate reality is that our consultancy deals with numerous theft and dishonesty related disciplinary and arbitration hearings on an ongoing basis.

One of the questions which frequently arises is, does the monetary value of the items or money stolen, influence the choice of sanction, and importantly, if the item is of minimal monetary value, does it mitigate against dismissing the culprit?

To begin with, it’s worth remembering what the Constitutional court had to say on sanction selection in Sidumo & COSATU v Rustenburg Platinum Mines Ltd & 2 others (CCT85/06). This judgment, amongst other things, said that “In deciding whether a dismissal is fair a commissioner need not be persuaded that dismissal is the only fair sanction – it is sufficient that the employer establishes that it is a fair sanction”.

In this vein, the Concourt judgment continued that the “Labour Appeal Court in Nampak Corrugated Wadeville v Khoza (held that) the determination of an appropriate sanction is a matter which is largely within the discretion of the employer.  However, this discretion must be exercised fairly.  A court should, therefore, not lightly interfere with the sanction imposed by the employer unless the employer acted unfairly in imposing the sanction.  The question is not whether the court would have imposed the sanction imposed by the employer, but whether in the circumstances of the case the sanction was reasonable.

When all is said and done, said the judgment “In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances.  He or she will necessarily take into account the importance of the rule that had been breached.  The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal.  There are other factors that will require consideration.  For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.  This is not an exhaustive list”.

It follows therefore, that the monetary value of goods or funds stolen must be considered as a mitigating factor when contemplating sanctions in dishonesty cases, but does it necessarily mean that they will save an employee from dismissal, even if the monetary value is low.

The short answer is, not necessarily.  But it may on occasion.  For example, the dismissal of an employee in a retails store who pleads guilty to stealing a few sprays of deodorant from a can of deodorant on the store shelf, would be substantively unfair (on grounds that the sanction is too harsh) if there were compelling mitigating factors such as long service, and a clean disciplinary record.

The Labour Appeal Court judgment, in Shoprite Checkers v CCMA & 2 others (LAC: JA08/2004) provides important insights into whether dismissal for the theft of small items.  This judgment quoted the  Labour Court in Standard Bank SA Limited v CCMA and others [1998] 6 BLLR 622 at paras 38 – 41 where Tip AJ said: “It was one of the fundamentals of the employment relationship that the employer should be able to place trust in the employee… A breach of this trust in the form of conduct involving dishonesty is one that goes to the heart of the employment relationship and is destructive of it.”

This judgment continued that the Standard Bank judgment “was followed by Mlambo J (as he then was) in Metcash Trading Limited t/a Metro Cash and Carry and another v Fobb and another (1998) 19 ILJ 1516 (LAC) at para 16 – 17 where the learned judge found that in relation to the consumption of one 250 ml bottle of orange juice “theft is theft and does not become less because of the size of the article stolen or misappropriated”.

The question of whether dismissal for theft, regardless of the value of the stolen items, in the context of prevailing high stock losses, was addressed by the Labour Appeal Court in Leonard Dingler (Pty) Ltd v Ngwenya (1999: 20 ILJ (LAC) – “Was dismissal of the respondent an unfair sanction? I am persuaded that this question falls to be answered in the negative. It is true that the respondent had a long record of service (7 years 10 months…) with no previous record of a disciplinary offence. On the other hand, Oosthuizen testified that the appellant experienced theft by its employees on a large scale. It follows that a measure of deterrence is called for”.

Lots of boxes to tick when proving poor performance

Lots of boxes to tick when proving poor performance

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  [2014] 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”.

Refusal to undergo a polygraph test may be grounds for dismissal

Refusal to undergo a polygraph test may be grounds for dismissal

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.