IVAN ISRAELSTAM: Dismissal unfair if employment relationship is still tolerable

The Commission for Conciliation, Mediation and Arbitration’s (CCMA) guidelines on misconduct dismissal arbitrations emphasise that when the employer is contemplating the dismissal of an employee, it should be able to show that the employee’s offence was so serious that it made “a continued employment relationship intolerable”.

Such serious offences could include, for example, gross insubordination, endangering the safety of others, wilful damage to the employer’s property, gross dishonesty and assault.

While these examples are not the only potential justifications for dismissal, even these gross offences will not automatically give the employer the right to dismiss. This is because, in addition to looking at the seriousness of the offence itself, the person imposing the sanction is obliged to consider mitigating circumstances such as the employee’s length of service, previous disciplinary record, personal circumstances and others. The arbiter is also required to look at the nature of the job. For example, while sleeping on the job might be most serious for a security guard, it may not merit dismissal for a back room clerk. In addition, there may be other circumstances attached to the case that could influence the sanction. For example, if the security guard fell asleep because he had to work a double shift without a break, this could render dismissal too harsh a penalty.

In the case of Humphries & Jewel (Pty) Ltd vs FEDCRAW & others (CLL Vol. 15 No. 10, May 2006) the Labour Appeal Court found that “The relationship of trust, mutual confidence and respect which underlies the employment relationship” are at issue. “Unless there are facts that show that the employment relationship was not detrimentally affected by the employee’s misconduct, it would be unreasonable to compel either the employer or the employee to continue the relationship.”

The parties will, to sway the arbitrator, need to argue around the issue as to whether dismissal was necessary to protect the employer from having to continue a relationship with the employee.

The employer would normally be entitled to argue, for example, that racist behaviour has rendered continued employment intolerable. In the case of Ceppwawu obo Evans vs Poly Oak (2003, 12 BALR 1324) the employee was dismissed for making a racist comment during an altercation. He was charged with using offensive language and with using inappropriate language. He claimed that he had done so in jest and had not intended to hurt the other person. The employer claimed that the employee had breached its code of conduct which was designed to improve relations in the workplace. Though the employee had apologised to the complainant for his remark the arbitrator upheld the dismissal.

In Edcon Ltd vs Pillemer NO and others (2010, 1 BLLR 1) the Supreme Court of Appeal found that the employee’s dismissal for dishonesty was unfair because the employer had admitted that the employee’s conduct had not destroyed the trust relationship.

The CCMA’s guidelines together with these case decisions make it clear that employers will not persuade the CCMA to uphold a misconduct dismissal unless the evidence they bring to arbitration clearly and unequivocally shows that the employee’s conduct made continued employment intolerable.

• Israelstam is CEO of Labour Law Management Consulting.