Dismissal of an employee with a clean record, fair or not ?

Dikakanyo Ramakobya (Attorney)

Schedule 8 of the Labour Relations Act 66 of 1995 as amended “LRA” recognizes three grounds on which a termination of employment might be legitimate, those grounds are “the conduct of the employee, the capacity of the employee, and the operational requirements of the employer’s business”. This article focuses on the termination of employment due to the conduct of the employee, the same schedule empowers the employer to dismiss an employee with a clean record if the offence is so serious that it makes a continued employment relationship intolerable.The following offences are considered to be serious and therefore dismissal for a first offence would be appropriate, they are as follows “gross negligence which resulted in loss to the employer’s business, gross dishonesty, willful damage to the employer’s property, willful endangering of the safety of others, physical assault on the employer or on a fellow employee, client or customer, gross insubordination, theft and fraud amongst others”.

In Ndwanya v South African Local Government Bargaining Council and Others (JR853/2011) [2013] ZALCJHB 2 (7 January 2013) the court recognized gross insubordination as a serious offence and therefore confirmed the decision of the Arbitrator and dismissed the employee’s review application.  In the event that the employee is convicted of any of the above offences , dismissal is in many instances the most appropriate sanction despite the employee’s clean service record.

In Miyambo v CCMA and Others  (JA 51/09) [2010] ZALAC 30; 2010] 10 BLLR 1017 (LAC); (2010) 31 ILJ 2031 (LAC) 2 June 2010, the employee was dismissed for theft as a first offence, he approached the CCMA for relief and the Commissioner found that the dismissal was unduly harsh and unfair. Award was granted in favour of Mr Miyambo, that he be reinstated. The employer took the award on review wherein the Labour Court found that the Commissioner’s conclusion were irrational.

Mr Miyambo unsatisfied with the outcome of the review application, approached the Labour Appeal Court for relief, this exercise was futile. The Labour Appeal Court reaffirmed the decision of the Labour Court, in that the award did not pass the reasonableness test as outlined in the case of Sidumo and another v Rusternburg Platinum Mines Ltd and others [2007] ZACC 22 ; [2007] 12 BLLR 1097 (CC)

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By |2018-08-06T07:10:12+00:00August 6th, 2018|Uncategorized|0 Comments