In the matter of Paarl Coldset (Pty) Ltd v Singh (DA1/2021) [2022] ZALCD 8, Mr. Singh (Respondent), a shift manager of Paarl Coldset (Applicant), a printing business, was dismissed after an altercation with an employee of a media news company, Ms. Cassim. The altercation which led to the dismissal occurred after the Respondent drove up a one-way towards Ms. Cassim. Ms. Cassim signalled to the Respondent that he was heading down the wrong lane, whereafter she reversed her vehicle to allow the Respondent to pass. The Respondent decided to speed towards Ms. Cassim, whereafter he swore at Ms. Cassim and her son. The Respondent proceeded to get out of his vehicle and continue his tirade, which reduced Ms. Cassim to tears. At the disciplinary hearing, the Chairperson stated that the offence could warrant a dismissal but took the Respondent’s thirty-three (33) years of service and clean disciplinary record into consideration and decided to reduce the sanction to a final written warning provided that the Respondent apologises to Ms. Cassim and her son.

The Respondent apologised in writing to his line manager, but it was agreed that the Respondent would also personally tender his apology at a meeting with the Cassims. At the arranged meeting, the Respondent refused to apologise and made no further attempt. This led to another disciplinary hearing where the Respondent was accused of breaking the trust relationship between the Respondent and the Applicant by failing to apologise as agreed, ultimately leading to the Respondent’s dismissal. The Respondent elected to refer a matter to the CCMA, where the Presiding Commissioner found the dismissal fair. The Respondent took the matter on review to the Labour Court (LC), where the Commissioner’s decision was overturned, and the Respondent was ordered to be reinstated. The Applicant decided to take the matter on appeal, where the Labour Appeal Court (LAC) believed the LC treated the matter as an appeal, not a review. The LC failed to regard whether the decision made by the arbitrator was one that a reasonable arbitrator could not reach. The Court further stated that despite the seriousness of the Respondent’s misconduct, the Applicant elected to implement progressive discipline and reduce the sanction to a final written warning on the basis that the Respondent apologises to the Cassim’s. The Respondent did not take heed of the final written warning and the obligation imposed upon him. The Court went on to state that the Applicant was not obliged either to accept or overlook such repeated misconduct on the part of the Respondent or to extend any further leniency to the Respondent when he had refused to remediate his behaviour and failed to apologise as agreed. The appeal was upheld.

It is thus clear from the afore-mentioned matter that an obligation or condition can be attached to a final written warning. Suppose an employee fails to fulfil such an obligation. In that case, it could lead to the breakdown of the trust relationship and possibly to further disciplinary action, which could result in a dismissal. Hence, the obligation should be taken seriously. Employers should consider each matter on its own merits before deciding to attach an obligation. The obligation should also be reasonable regarding the misconduct committed and the circumstances surrounding it.

Article by Dirk Hamman
Dispute Resolution Official – CEO Klerksdorp