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-----Original Message-----
From: Norman Mampane <[email protected]>
Sender: [email protected]
Date: Wed, 2 Nov 2011 03:42:18
To: Communist!!<[email protected]>;
ycl<[email protected]>
Reply-To: [email protected]
Subject: [YCLSA Discussion] CASE Law Newsletter from SSSBC
A really messy disciplinary process
The decision of the Labour Appeal Court in Zono v Gruss NO & others (2011) 20
LAC 1.25.4is again a lesson in how disciplinary proceedings can go wrong – and
badly so. This decision also shows how a series of unfortunate incidents and
words written in haste and in the heat of the moment can have significant
repercussions for both an employee and an employer.
What happened
The employee was stationed at Sada, near Queenstown. This was not his home
town, but he was stationed at Sada as a result of the employer’s belated
attempts to give effect to an earlier arbitration award in which the employer
had been ordered to promote the employee. The employee was scheduled to attend
a course in Krugersdorp from 11 to 15 April 2005. Not wanting to make the trip
alone, he decided to travel to the course venue with a colleague. But the
colleague said, at the last moment, that he was not going to attend the course.
The employee then needed to arrange transport, so he arranged for an official
vehicle to be driven to Port Elizabeth (his home) from Sada – he would drive to
Krugersdrop with this vehicle. The vehicle was duly delivered, the employee
duly drove to Krugersdorp and duly attended the course as he was supposed to.
It was when coming back that things went wrong. The employee delivered the
vehicle back to the State garage in Port Elizabeth, but then fell ill. He
claims that he sent his superior an sms message that he was too ill to report
for duty. The superior then called the employee and told him to report for work
because an audit was to be conducted and the employee’s attendance was
required. The employee responded that he was ill. But he failed to send a
medical certificate to his employer immediately.
The employee’s superior at Sada also instructed the employee to return the
vehicle immediately. The said that he could not do so, because the vehicle was
not at his home – it had been delivered to the State garage. Eventually, the
employee faxed a medical certificate to the superior and made some remarks on
the cover sheet of the fax.
The employee was charged with four offences. The first was that he had misused
the vehicle – that he had travelled from Sada to Krugersdorp via Port Elizaneth
without authorisation. The second charge was that he had been grossly
insubordinate when he failed to comply with an instruction to return the
vehicle immediately after his return. He was also charged with being absent
without leave – this was because the employee failed to report to duty when
instructed to do so. The final charge was that he had addressed “indecent and
derogatory” remarks to his superior.
A disciplinary enquiry was duly held and the employee was found guilty on all
of these charges.
Time passes
One of the arguments raised by the employee was that the employer had lost the
right to discipline him because of the passage of time. The Departmental
disciplinary code and procedure provided that a formal disciplinary enquiry
should be finalised within 30 days from the date on which the investigation is
finalised. The code provided that if this time limit could not be complied
with, the parties should be informed of the reasons for the delay. Finally, the
disciplinary procedure also said that if the employer, without good reason,
fails to institute disciplinary proceedings within a period of three months
after the completion of the investigation, the disciplinary action “falls
away”.
The arbitrator had concluded that the code and procedure was a guideline only.
It was argued before the Labour Appeal Court that this was not the case – that
the disciplinary code and procedure was a collective agreement that was binding
on the employer. The Labour Appeal Court found that it was not necessary to
resolve this issue.
It was clear from the facts that the disciplinary enquiry was instituted within
the time period set out in the disciplinary procedure. One of the
investigations, for instance, ended on 31 August 2005. The employee was advised
of the charges on 8 November 2005 and the disciplinary enquiry was scheduled
for 22 November 2005. On this date the enquiry was suspended because a neutral
chairperson could not be found and because the employee raised a number of
procedural points. The employee was informed of the reason for the postponement
– and some of the subsequent postponements were made at the request of the
employee himself. The disciplinary enquiry ran all the way to June 2006 – when
the employee was dismissed.
The Labour Appeal Court confirmed the arbitrator’s findings: the disciplinary
hearing was scheduled timeously and the process, even though it was
characterised by delays and one postponement after the other, was finalised as
quickly as it could be. At no point in time did the employer give the
impression that it would not discipline the employee.
The merit of the charges
As regards the charge of misuse of a vehicle, the Labour Appeal Court pointed
out that the charge did not relate to the misuse of a vehicle in any ordinary
sense. After all, the employee needed a vehicle for an official purpose, he was
allocated a vehicle and used it to attend a course in Krugersdorp. The essence
of the charge appears to have been that the use of the vehicle was not approved
by the employee’s superior. There was no merit in this charge, the Court found:
even though the employee’s superior did indeed not approve the use of the
vehicle, other officials did. At worst, the employee may have failed to follow
the correct procedure, but he could not be blamed if his superior was not
available.
The second charge (insubordination) did not prove to be much sounder. The
employee was telephonically instructed, again by his superior, to return the
vehicle. The employee agreed to bring the vehicle back the same day, but failed
to do so – he said that he was ill on that day. For the employer it was argued
that because the employee made no arrangements to have the vehicle returned to
Sada, he was guilty as charged.
There was no dispute about the employee’s being ill and that there was a
medical certificate that covered the day in question. The employee was indeed
booked off ill by a medical practitioner. Once again, the Labour Appeal Court
found that there was no merit in the charge. The employee could perhaps have
been more cooperative – but even so it cannot be said that he was obliged to
arrange for the return of the vehicle. He was, after all, off duty on sick
leave.
The third charge was that the employee was absent without leave and once again
the charge held no water. It was clear that the employee did, eventually,
submit a medical certificate covering the period in question. It could not be
said that the employee stayed away for longer than the leave granted – because
no leave had ever been granted. If the Department had wanted to discipline the
employee because he could not prove that he was ill, he should have been
charged accordingly. The rules of the Department do not require ill employees
to submit medical certificates immediately – nor could the employee have done
so, given that he did not have a fax machine at home.
This left only one charge: that the employee made derogatory remarks on the fax
cover sheet. For the employer it was argued that the remarks, which focused on
the qualification of the medical practitioner and some other exclamations, were
indecent and derogatory remarks to be made to a senior official (the employee’s
superior). The arbitrator had found that the employee was indeed guilty on this
charge – and pointed out that the employee had not apologised for making the
remarks (even though he had ample opportunity to do so).
One question the Labour Appeal Court dealt with was how these remarks fitted
into the employer’s disciplinary code and procedure. Were they “indecent
gestures and/or signs made to any other person”? It was clear that the employee
had communicated with his superior in a derogatory and belittling manner – but
then the applicable charge would have been the “use of improper language to any
other person”. The Court found that the most appropriate charge would even have
been making “humiliating accusations directed at any other persons”.
The Labour Court had agreed with the arbitrator and his conclusion that these
remarks were made to challenge the superior’s authority. But the Labour Appeal
Court disagreed: the remarks were aimed at belittling the superior, but were
not intended to undermine him and the Departmental hierarchy. This offence also
fell into the category B list of offences – indicating that the employer did
not believe that this was a dismissable charge. The arbitrator was wrong by
failing to analyse the nature of the offence – and by attaching more weight to
the charge than it warranted.
The charge related, in essence, to an interpersonal communication between a
superior and a subordinate – but this communication was outside the public
view. It did count as aggravating factors that the employee persisted in saying
that his remarks were justified and that he still refused to apologise. Even
so, this offence did not justify the dismissal of the employee – even though
the offence should still be sanctioned in one way or another.
Reinstatement, but …
The Labour Appeal Court reviewed and set aside the arbitrator’s award and
upheld the appeal. The Labour Appeal Court ordered the employer to reinstate
the employee. But this left the issue of the “obnoxious” remarks the employee
had made to his superior. So the Labour Appeal Court reinstated him as from the
date the award was handed down (and not to the date on which he was dismissed).
This, the Court said, should bring home to the employee the fact that there
will be consequences when he belittles his superior.
Again, this decision of the Labour Appeal Court makes a number of important
points. The first is that disciplinary charges should be formulated and framed
appropriately – in this case it would mean that the correct charge should be
taken from the disciplinary code and procedure. The question is which charge,
in the code and procedure, is the charge that most closely fits the alleged
offence. The second point is that disciplinary charges and the facts that
underlie them need to be considered carefully, and an employer should also
ensure that it has the facts to back up those charges.
It is clear from the Labour Appeal Court’s decision that only one of the four
disciplinary charges against the employee had any merit whatsoever. It
underscores the need for employers to take considerable care in evaluating the
facts of a case, to make sure that the facts support a charge, and that those
facts can be proven. Putting a charge that has no merit to an employee is
simply looking for trouble. And this case is an illustration of just how much
trouble can be caused if the charges and the facts are not thoroughly thought
through.
Carl Mischke
November 2011
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