The pressures of business in a struggling economy result in a vast amount of time dedicated to enhancing business or even staying afloat. To add to the woes of struggling businesses, employers are also obliged to ensure that misconduct is treated in terms of prevailing Labour legislation. Regardless of the misconduct committed, the basic principles of evidence need to be observed when presenting a case at an internal disciplinary hearing or subsequently at arbitration. Arbitration is a once-off opportunity to prove your case. The notion that the higher courts will easily reverse an arbitrator’s decision is sadly misplaced.
The case under discussion leaves one aghast and in a sense of shock at the strong chastisement from the Labour Appeal Court in a case where the evidence against a dismissed employee was simply inadequate. Once misconduct is discovered, employers hastily move to convene disciplinary processes to ensure that strong action is taken against errant employees. Lamentably, these decisions are often taken in haste, which may leave the employer with an employee who must be reinstated and legal costs that the employer must pay.
This case study is, therefore, intended as a cautionary note to employers that due diligence must be followed before the employer decides to undertake disciplinary action. In the case of Samancor Chrome LTD t/a Samancor Eastern Chrome Mines v NUM and others JA69/2022, the employer was informed that the employee used the employer’s store loyalty card and its accumulated points to purchase goods without permission or authority to do so.
At the disciplinary hearing and subsequent arbitration before the CCMA, the totality of the employer’s case was merely an empty allegation that the employee used the employer’s store loyalty card. Axiomatically, it was no surprise that the CCMA found the employees’ dismissal unfair. In the Labour Appeal Court judgment, it is clear that the Court reserved some scathing words for the employer who decided to take the finding of the CCMA on review to the Labour Court, where it sought to make allegations against the conduct of the CCMA Commissioner and by way of affidavit, tried to include evidence that was never brought before the Commissioner arbitrating the dispute at the CCMA. Predictably, the Labour Court upheld the unfair dismissal finding, also reiterating the fact that there was simply no case against the employee. In a last ditched attempt, the employer approached the Labour Appeal Court, which ultimately found that “the case presented was a study in ineptitude”.
Unfortunately for the employer, it was too late during the review proceedings at the Labour Court and Labour Appeal Court to try and rectify the glaring omissions made during the CCMA arbitration. The Labour Appeal Court concluded that the “appellant’s [employers] ineptitude is responsible for the failure of the case.” The Court dismissed the employer’s appeal and ordered that it pay the legal costs associated with the appeal.
Expressing great displeasure with the employer’s conduct, the Court remarked, “It is not tolerable that a party who has access to legal advice persists in case after case to try their luck with the courts in a demonstrably hopeless case. Court time is precious, and the demand on judicial time and energy exceeds supply.”
It may very well be that the employee in the case under discussion was involved in some untoward behaviour with the employer’s store loyalty card. However, this allegation was not enough to justify their dismissal. Employers need to exercise a great measure of care when approaching allegations of misconduct. One of the key takeaways for our members is that the higher courts are not there to consider evidence that ought to have been led at an arbitration. And in this instance, the courts will not hesitate to award legal costs.
It is accepted that matters of arbitration and case preparation may be daunting to businesses. There is simply not enough time to allocate to prepare for cases when the exigencies of business need priority. Therefore, Consolidated Employers Organisation is aware of the risk that its members face and has put together tailor-made packages, often at discounted rates, to train line managers, human resources and persons involved with workplace dispute resolution to equip them for arbitrations. It is our hope that members of Consolidated Employers Organisation participate in our programs to avoid embarrassment and financial vicissitudes.
Article By Shakti Jainarain
Senior Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)