Imprisoned employees and other cases
Johanette Rheeder

Although not part of our day to day activities at work, we are sometimes faced with interesting and challenging situations. Having to discipline an employee in prison may be one of those tricky situations as the employee is not easily accessible and not likely to return to work soon, especially when it involves serious crime. The employee is absent for an extended period of time and the employer wants to terminate employment, the question is how and for what reason?

In Samancor Tubatse Ferrochrome v MEIBC & others – (2010) 19 LAC 1.11.12 and [2010] 8 BLLR 824 (LAC) the accused employee, a furnace operator, was placed in custody for 150 days on suspicion of having been involved in an armed robbery. Due to this he was dismissed for incapacity, as he could not render his services. He was advised of his dismissal by a letter addressed to the police station at which he was being held. Upon his release a "post dismissal" hearing was convened.

The dismissal was confirmed by the same manager. The main question here is what misconduct did the employee commit? He could not render his service and the employer knew where he was. The employer chose "operational incapacity dismissal". The problem the employer faced was twofold. Firstly, did incapacity encompass ill health and poor performance only or can it go wider than that, and secondly, did the employer follow the right procedure by not granting a hearing to the employee the first time when he was dismissed? The Labour Appeal Court found that incapacity is wider than just ill health and poor performance, it also includes instances such as incompatibility and this case in particular, where the employee is prevented from rendering his service for an extended period of time and through means outside his control.

The LAC found that an employer, to determine substantive fairness, should follow schedule 8 of the LRA and needs to consider the reasons for the incapacity, the extent of the incapacity, whether it is permanent or temporary, and whether any alternatives to dismissal do exist. Interesting to note that the LAC found that, bigger employers with "deeper pockets" should consider keeping the position open for the employee and appoint a temporary employee in the position. However, the Court found that the rule cannot be inflexible and the employee was fairly dismissed in this particular case, taking into consideration the length of his absence and the importance of his position, which could not easily be filled by temporary employees. With regard to procedure, the LAC found that the employee was not afforded a fair opportunity to defend himself at the first hearing and that the second hearing, chaired by the same manager, was just an ex post facto confirmation of the first decision. The employer should have done more to grant the employee his basic right of audi alterem partem. He should have at the very least, have been informed of the hearing and the employer should have consider various avenues to grant him the opportunity to defend himself.

In Timothy v Nampak Corrugated Containers (Pty) Ltd (2010) 19 LAC 1.11.13 the employee passed himself off as an attorney to other attorneys and became very rude and offensive during the process. The employee was found out and reported to his employer for his conduct and the LAC found that the employee's dishonest conduct could call into question the reputation of the employer. The employee's attitude, specifically his blatant denial of guilt and his lack of remorse, played an important role in the LAC's finding that dismissal was an important aggravating factor warranting dismissal, notwithstanding his clean disciplinary record.

In Pillay v SA Post Office (2010) 19 CCMA 8.252 the question of sexual harassment was investigated again. This case again highlights the fact that the employer bears the burden of proof and initiators should be clear as to what evidence they should bring to prove the misconduct.

Especially so, when the employee is charged with contravening a code or policy of the employer, such as a sexual harassment policy. Two female colleagues claimed that the employee had touched on them in "inappropriate places" over a lengthy period. The employee was charged with sexually harassing the two women and dismissed. The employee claimed that he had a habit of touching people with whom he was in contact to demonstrate friendship, and denied any other wrongdoing.

The employer had a sexual harassment policy which defined sexual harassment as "purposeful and sexually-oriented behaviour that is bound to elicit negative response." In terms of that definition, the accused employee must be aware that his conduct is unwanted. It must also be done intentionally. While it was common cause that the employee had touched the complainants on a number of occasions, it was not clear that he understood or intended this contact to be of a sexual nature. Apart from two alleged incidents, the complainants' evidence did not show that they had made any effort to inform the employee in clear terms that the contact was unwelcome. Therefore, while the complainants may indeed have felt uncomfortable when touched by the employee, it did not follow that he was guilty of sexual harassment. The commissioner found that, even on a balance of probabilities, the respondent had failed to prove that the applicant's conduct was sexually oriented or purposeful.

For more information contact Johanette Rheeder
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