There is so much information, case law and legislation out there pertaining to dismissals for misconduct, and there are many different types of misconduct which can be committed by employees. Further to this, there are also various sub-facets when it comes to dismissals for misconduct, such as concepts like derivative misconduct or collective misconduct. With this abundance of information so readily available it can be daunting for employers to sift through what information may be relevant to their requirements at the time. With this in mind, this series of articles sought to bring the real grass-roots level knowledge and information to the fore so that our members are able to navigate these types of dismissals and know what to keep in mind when considering such dismissal. In wrapping up the series, it would be prudent to very briefly point out the most common pitfalls encountered by employers, especially when faced with a CCMA case where an employee is alleging an unfair dismissal based on misconduct allegedly committed.
TRUST RELATIONSHIP
This is possibly the most important factor to consider when deciding or contemplating dismissing an employee. The trust relationship goes to the heart of the employment relationship between the employer and employee, without it there can be no employment relationship as an employer naturally counts on and relies upon an employee to carry out certain functions within the workplace. An oft-quoted case when it comes to dismissals for misconduct is the case of SAPPI Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC) at para 7, the Court held as follows: “It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully.… The relationship between employer and employee has been described as a confidential one. The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’… If an employee does ‘anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him’….”.
Whilst the above Labour Appeal Court case revolved around a dismissal for misconduct pertaining to dishonesty the dictum as seen above paints a clear picture of how employees are meant to serve employers interests. The breakdown of the trust relationship does not only stem from misconduct pertaining to dishonesty, however. Even something as simple as an employee regularly being late and consequently being disciplined, therefore, can lead to the breakdown of the trust relationship. It is important for employers to remember that when testifying at the CCMA regarding an employee who has been dismissed for misconduct, that they must elude to the fact that the trust relationship between the parties has broken down and that dismissal in the circumstances and as a result of such breakdown was the only reasonable option.
INDUSTRY SPECIFIC RULES
Many industries or business sectors have rules which are specific to them and would not carry such severe sanctions in other industries. For instance, in the security industry it is well established that sleeping on duty is a very serious offence and in most instances is dismissible for the first offence as it goes directly to the heart of the reason the security guard is posted at a particular site. However, an employee who is an administrative assistant sitting in a back office, for example, sleeping on duty, whilst a disciplinable offence, would not carry such a heavy sanction and would more than likely result in just a written warning.
Employers need to assess what their own unique working environments are, what the operational requirements of such industries are and develop rules which can effectively govern and regulate their working conditions. Often an employer would use a very general code of conduct and then at a later stage wish to impose a sanction which does not correlate to their specific code of conduct. It is important for employers to always remember that rules, especially those which may be industry-specific, are communicated to and acknowledged by their employees so as to avoid situations at the CCMA whereby adverse arbitration awards may arise from something as simple as an employer not being able to prove that the employee knew, or reasonably could have known a specific rule.
CODE OF GOOD PRACTICE
The Code of Good Practice on dismissals for misconduct is something which has been mentioned in almost every article in this series. The reason being is that the code is of the utmost importance when it comes to establishing the substantive fairness of any dismissal for misconduct as it is the starting point in deciding whether any dismissal for misconduct is substantively fair or not. Employers are urged to familiarise themselves with the code and what it stipulates, as this will enable employers to make more informed decisions when contemplating dismissing an employee for misconduct and avoid potential adverse situations at either the CCMA or Bargaining Councils when dealing with such matters.
Article by: Daniel Van Der Merwe
Provincial Manager – Port Elizabeth