saslaw presentation 2010 final

Report
INDIVIDUAL DISMISSAL
1.1 Appropriate sanction
Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC)




security guard dismissed after being found in possession of scrap metal he had removed
without authority from factory
contradictory explanations given by employee
disciplinary code provided for both final warning and dismissal for theft
employee claimed that as ‘petty theft’ and in light of long service (25 yrs) and clean
disciplinary record, dismissal too harsh a sanction
Court held that:
 in deciding on appropriate sanction commissioner must consider all relevant
circumstances

role of the trust relationship remains predominant
 dismissal for theft based on operational requirements
 long service cannot be mitigating factor if employee guilty of theft
 distinction between theft and “petty theft” artificial and disciplinary procedure that draws
distinctions between degrees of theft is impractical
 appellant breached relationship of trust and dismissal operationally justified and fair
Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC)


employee dismissed for impersonating an attorney and bringing employer’s name
into disrepute
no remorse shown and persistent denial of wrongdoing
Court held that:
 purpose of progressive discipline to ensure that employee reintegrated into
workplace, where employment relationship can be restored
 where dishonest conduct and denial of wrongdoing progressive discipline
inappropriate
Boss Logistics v Phopi & others [2010] 5 BLLR 525 (LC)
 senior employee dismissed for poor work performance and misconduct after
misrepresenting qualifications and experience
Court held that:
 if an employee misrepresents competence no need to provide guidance, counselling
or opportunity to improve
 senior employees should not be counselled and should be able to gauge their
performance
 Commissioner not to second-guess employer’s performance standards
 dismissal substantively fair
Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA)




employee dismissed for dishonesty after failing to reveal that company car damaged in accident
employer claimed that trust relationship irreparably damaged
question whether material before CCMA sufficient proof of destroyed relationship of trust
employer’s evidence of the history of the matter and policy of intolerance of dishonesty insufficient
Court held that:

evidence required of effect of conduct on the trust relationship

no evidence provided of nature and scope of her duties, her place in the hierarchy, the importance of
trust in the position that she held

dismissal substantively unfair
Mutual Construction Company Tvl (Pty) Ltd v Ntombela NO & others
[2010] 5 BLLR 513 (LAC)


administrative clerk dismissed for fraudulently claiming 81 hours worked by himself.
claimed that disciplinary hearing procedurally unfair because employee not shown altered time sheets
and disciplinary notice did not specify fraudulent entries
Court held that:

employer not expected to draft charge sheets according to requirements of criminal courts.

employee understood nature and import of charges

charges clarified in de novo arbitration hearing
2.1 Dismissal of labour broker employees
Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC)


applicant formerly employed by respondent in terms of a ‘fixed term
eventuality contract of employment’ - dismissed
contract stipulated that upon termination of respondent’s contract with
client to whom employee rendered services employee’s employment
with respondent would terminate
Court held that:
 termination may not constitute dismissal, when act of employer is not
the proximate cause of the dismissal (eg expiry of fixed-term contract)
 applicant not ‘dismissed’ as termination of employment contract
triggered by third party and not by employer




employee sent offensive e-mail to colleague and labour broker’s
client insisted that he be removed from its premises
broker convened disciplinary hearing and issued final written warning
client refused to permit employee to return to its premises
broker retrenched employee after consultation process
Court held that:
 contractual provision that enables labour broker to withdraw employee
placed with client contrary to public policy and in breach of
constitutional right to fair labour practices
 labour brokers and clients ‘not at liberty to structure their contractual
relationships in a way that would effectively treat employees as
commodities to be passed on and traded at the whim and fancies of
the client’
 broker has right to approach court for recourse against client who
refuses placement of employee
2.2 Desertion
Jammin Retail (Pty) Ltd v Mokwane & others [2010] 4 BLLR 404 (LC)


contract of employment provided that it would automatically terminate if
employee absent from work without permission for more than five
consecutive days
employee dismissed after unauthorised absence from work
Court held that:
 private sector employer to grant deserters hearings before dismissing
them if their whereabouts are known
 employer knew employee’s home address and made no attempt to
contact her
 dismissal substantively fair but procedurally unfair because employee
not given hearing before dismissal
Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR
824 (LAC)


employee dismissed after being held in police custody for 150 days
dismissed for “operational incapacity” as he was physically unable to
tender his services
Court held that:




incapacity not confined to ill health, injury or poor work performance
and includes inability to work through any incapacitating cause
fairness of dismissal depends on facts
employer had no idea how long the employee would be incarcerated,
and there was a commercial need to fill employee’s position.
dismissal substantively fair
Jordaan v CCMA (unreported PA 1/09 11/5/ 2010 LAC)

employee resigned after refusing to sign restraint of trade and claimed constructive dismissal
Court held that:

2 stage enquiry – i) whether constructive dismissal and ii) whether dismissal fair

not independent enquiries and same facts relevant to both

intolerability is an objective enquiry and employee must show that no reasonable option but to
resign

employer had legitimate interest in asking for restraint to be signed and no constructive dismissal
found
Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (CC)


employee given choice between resigning and placed on “poor work performance training
programme”
employee chose to resign claiming no option as going to get dismissed regardless
Court held that

test for constructive dismissal is not whether employee has choice of resigning or remaining, but
whether employer has made continued employment intolerable
Chabeli v CCMA & others [2010] 4 BLLR 389 (LC)
Court held that:


objective assessment of the employer’s conduct to be
assessed in totality to assess intolerability
court should not fragment the employee’s complaints
and conduct of employer to be considered as a whole
in assessing whether its effect, judged reasonably and
sensibly, was such that the employee could not be
expected to put up with it
South African Maritime Safety Authority v McKenzie
[2010] 5 BLLR 488 (SCA)






employee dismissed and after pursuing remedies under LRA reached
settlement agreement with employer
employee claimed damages for breach of employment arising out of his
unfair dismissal
court considered whether High Court has jurisdiction to determine claim
comprehensive unfair dismissal provisions do not provide for importation of
statutory rights into employment contract
when employees subject to and protected by LRA their employment
contracts are not subject to an implied term incorporating the statutory right
to fair labour practices and fair dismissal
mechanical duplication of common law and statutory rights flies in the face
of legislative vision of a comprehensive labour law framework

similar documents