Transcript After the Edcon case - LexisNexis South Africa

After the Edcon case: How to
determine a fair sanction?
Nicola Smit
Professor of Law, University of Johannesburg
Co-director, CICLASS@UJ
Introduction
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Background
Onus of proof in dismissal disputes
The final decision regarding the fairness of a dismissal
When could dismissal be an appropriate sanction and
fair?
 How to approach the decision whether or not to impose
dismissal as sanction
Background 1
• Every employee has a right not to be unfairly dismissed
(s 185 LRA)
• If not automatically unfair, an employer may establish
that a dismissal was effected for a fair reason after
following a fair procedure (s 192 LRA)
• The Code of Good Practice: Unfair Dismissal (schedule
8 to the LRA) notes that whether or not a reason for
dismissal is a fair reason is determined by the facts of
each case and the appropriateness of dismissal as a
penalty (see item 7(b)(iv)).
Background 2
• Edcon Ltd v Pillemer NO & others (SCA)
• Reddy was the beneficial user of a company vehicle, a
Toyota Corolla, courtesy of Edcon’s car scheme policy.
– In June 2003, Reddy’s son was involved in an accident.
• Reddy was obliged, amongst other things, to report the
accident to Edcon, the South African Police Service and
the relevant insurance company within 24 hours and not
carry out repairs on the motor vehicle without the
approval of the insurance company.
– Reddy did not comply with these rules.
Background 3
• Edcon charged Reddy with “failure to be honest and act
with integrity in that you committed an act, which has
affected the trust relationship between the company and
the employee in that on 8 June 2003 to 8 October 2003,
you failed to report an accident of a company vehicle ...”.
• She was found guilty and dismissed.
• Pillemer made an award in which she concluded that
Reddy’s dismissal was substantively unfair and ordered
Edcon to reinstate her but without arrear salary.
Background 4
• The crucial issue was whether the employee’s
subsequent “lack of candour” had breached the trust
relationship, as the presiding officers of the disciplinary
and appeal hearing had found.
• The commissioner did not regard the sanction of
dismissal fair because of the circumstances of the
matter, the employee's length of service, her previous
unblemished record and the fact that the employee was
only two years away from retirement.
Background 5
• Edcon approach LC to set aside award (ito s 145 LRA)
but fail, then a further appeal to the LAC also failed.
• The SCA reviewed the history of the various tests
applied by the courts in applications to review, incl
– Sidumo v Rustenburg Platinum Mines Ltd & others (CC)
– Charge = “Negligence – Failure to follow established procedures
in terms of the Protection Services Department search procedure
which caused prejudice or possible prejudice to the Company in
terms of production loss and Failure to follow established
procedures in terms of the Protection Services Department
search procedures.”
Background final
• According to the Edcon case the test for review
applications have changed from:
“a rational connection between the material properly before
the arbitrator and the decision reached” to
“is the award one that a reasonable decision-maker could
arrive at considering the material placed before him/her?”
Onus of proof in dismissal disputes 1
• In a dismissal dispute each party bear the burden of
proof in relation to separate issues (i.e. the employee
regarding the fact of dismissal and the employer
regarding the fairness of the dismissal) (s 192 LRA).
• If misconduct was proven the employer still has to prove
that the dismissal was substantively fair as it was, inter
alia, the appropriate sanction for the conduct in question.
Onus of proof 2
• The employer must adduce evidence:
– “that is sufficient to persuade a court, at the end … that the
claim or the defence, as the case may be, should succeed”
• The employer has to look beyond the fact of misconduct,
it must consider the effect of such misconduct on the
employment relationship.
– the chairperson of a disciplinary inquiry can no longer “deal with
the issue of sanction on a cursory basis”
• What Edcon has emphasised is that if there should be a
dismissal dispute the employer must lead evidence
regarding the appropriateness of the dismissal as
sanction
Onus of proof 3
• The employer has a persuasive burden – it must place
enough material and facts before the decision maker to
persuade such person that the sanction of dismissal was
fair
• See Schmidt & Rademeyer (Law of Evidence 2009)
 “The court’s judgment as to whether something is reasonable … is
strictly speaking, also not capable of resolution by invoking a burden of
proof. It would not be correct to say that one of the parties has to prove
that a regulation is reasonable …. That is a matter for the court to
decide in the light of the facts set before it. But, of course, the facts
influencing the court’s decision could be placed in issue, and in that
respect the burden of proof could become operative.”
Onus of proof 4
• This is also evident from the Sidumo judgment:
– “[u]ltimately, the commissioner’s sense of fairness is what must
prevail and not the employer’s view.”
• Be that as it may, the facts influencing the
commissioner’s decision could be placed in issue and in
that respect the burden of proof become operative
• Fairness is a double-edged sword
– “The concept of fairness, in this regard, applies to both the
employer and the employee. It involves the balancing of
competing and sometimes conflicting interests of the employer,
on the one hand, and the employee on the other. The weight to
be attached to those respective interests depends largely on the
overall circumstances of each case.” Branford v Metrorail
Services (2003 LAC)
Onus of proof 5
• Fairness (continued)
– “Fairness comprehends that regard must be had not only to the
position and interests of the worker, but also those of the
employer, in order to make a balanced and equitable
assessment. In judging fairness, a court applies a moral or value
judgment to established facts and circumstances.” NUMSA v
Vetsak Co-operative Ltd (1996 (AD))
– “Where the rights in the section are guaranteed to workers or
employers or trade unions or employers’ organizations as the
case may be, the Constitution says so explicitly. If the rights in s
23(1) were to be guaranteed to workers only, the Constitution
should have said so. … In addition, s 23(1) must apply either to
all employers or none.” Nehawu v UCT (2003 CC)
Onus of proof 6
• Where there are factual disputes a court must make
findings on:
– “(a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.”
• See Sil Farming CC t/a Wigwam v CCMA (2005 LC), in
relation to a factual finding on the merits:
–
“A commissioner arrives at a decision which no reasonable
decision maker could reach if the decision is unsupported by any
evidence, or by evidence that is insufficient to reasonably justify
a decision arrived at or where the decision maker ignores
uncontradicted evidence.”
Onus of proof final
• See also Senama v CCMA & others (2008 LC)
– “A reasonable decision is reached when a commissioner, in
performing his/her functions as an arbitrator, applies the correct
rules of evidence , and if there is to be a deviation it must not be of
such a nature that it materially denies any party a fair hearing. It is
also required of the commissioner to weigh all the relevant factors
and circumstances of the case before him or her to ensure that his
decision is reasonable …”
• Myburgh submits that:
– “In summary, a commissioner's finding on the facts will be
unreasonable if it is: (i) unsupported by any evidence; (ii) based on
speculation by the commissioner; (iii) entirely disconnected from the
evidence; (iv) supported by evidence that is insufficient reasonably
to justify the decision; or (v) made in ignorance of evidence that was
not contradicted.”
Who decides? 1
• The SCA has confirmed that employers may set
reasonable standards of conduct in the workplace and
may enforce such standards ( Rustenburg Platinum
Mines (Rustenburg Section) v CCMA (2006 (SCA)).
• However, dismissal as a sanction must be substantively
fair – and the final decision maker is the commissioner
– “There is nothing in the constitutional and statutory scheme that
suggests that, in determining the fairness of a dismissal, a
commissioner must approach the matter from the perspective of
the employer. All the indications are to the contrary. A plain
reading of all the relevant provisions compels the conclusion that
the commissioner is to determine the dismissal dispute as an
impartial adjudicator.” (Sidumo (2007 (CC)) par 61)
Who decides? 2
• The Sidumo-test is a stringent test:
– “The commissioner must decide and the decision will be final
and binding as long as it cannot be said that such a decision or
award is one that a reasonable decision maker could not have
made in the circumstances of the case. It will not be often.”
Fidelity Cash Management Service v CCMA (2008 LAC)
• Having regard of this the LAC has stated that:
– “clearly, commissioners of the CCMA have a weighty
responsibility to act fairly” Phalaborwa Mining v Cheetham (2008
LAC)
Who decides? final
• Sidumo requires that:
– a commissioner must, when impartially considering the fairness
of a dismissal dispute, take into account the totality of
circumstances
– “is not given the power to consider afresh what he or she would
do, but simply to decide whether what the employer did was fair”
– “Insofar as this [the stringent nature of the Sidumo test] may be
interpreted as a licence for commissioners not to apply the
substantive law on dismissal, a word of caution. Notwithstanding
the fact that commissioners certainly have a discretion when it
comes to the determination of sanction, they are obliged to
consider and follow the jurisprudence of the labour courts, and
commit a reviewable irregularity if they do not do so. … In short,
the Sidumo test does not render legal precedent superfluous.”
When could/would a dismissal be
appropriate and fair? 1
• Whether or not a dismissal is for a fair reason is
determined by the facts of the case, and the
appropriateness of dismissal as a penalty
– the purpose of discipline is viewed as a means for employees to
know and understand what standards are required of them
• “dismissal should be reserved for cases of serious
misconduct or repeated offences”
– “serious” misconduct will be conduct which is of such gravity that
it makes a continued employment relationship intolerable
Appropriate and fair sanction? 2
• The Code then proceeds by stating that when deciding
whether or not to impose dismissal as penalty, in
addition to the gravity of the misconduct, the employer
should consider certain factors. These include:
– the employee’s circumstances;
• this include length of service, previous disciplinary record and
personal circumstances
– the nature of the job; and
– the circumstances of the infringement itself
Appropriate and fair sanction? 3
• In the Sidumo case the CC proceeded to list the
following factors that a commissioner must consider
when deciding on the fairness of a dismissal :
–
–
–
–
–
the importance of the rule that was breached;
the reason the employer imposed the sanction of dismissal;
the basis of the employee’s challenge to the dismissal;
the harm caused by the employee’s conduct;
whether additional training and instruction may result in the
employee not repeating the misconduct;
– the effect of dismissal on the employee; and
– the long-service record of the employee.
Appropriate and fair sanction? 4
• Serious misconduct of such gravity to make a continued
employment relationship intolerable
• Fijen (1996 AD) the relationship between EM and Em is
‘in essence one of trust and confidence’
– ‘to be just and faithful to the company, that is to say, to conduct
… in its service with diligence, integrity and single-mindedness”
• A breach of trust (i.e. conduct of the employee that
destroy the faith and goodwill of the employer towards
the employee) will normally be considered a “material
breach of an essential term” that may justify dismissal
TEST?
• Test is now: Was the ‘misconduct’ of such gravity to
make a continued employment relationship
intolerable?
• This may be indicated by showing that the ‘misconduct’
has resulted in the trust relationship being breached
Appropriate and fair sanction? 5
• Anglo American Farms t/a Boschendal Restaurant v
Komjwayo (1992 LAC) the court stated that the
employment relationship can only be healthy if the
employer can be confident that it can trust the employee
not to steal from it.
• Importantly, the court formulated the correct test to apply
as follows:
– “whether or not respondent’s actions had the effect of rendering
the continuation of the relationship of employer and employee
intolerable.”
Appropriate and fair sanction? 6
• The court continued that if that confidence is destroyed
or substantially diminished due to a theft
– “the continuation of their relationship can be expected to become
intolerable, at least for the employer. Thenceforth he will, as it
were, have to be continually looking over his shoulder to see
whether this employee is being honest”.
• In De Beers Consolidated Mines v CCMA (2000 LAC) it
was stated that:
– “Of course, a commissioner is not bound to agree with an
employer’s assessment of the damage done to the relationship
of trust between it and a delinquent employee, but in the case of
a fraud, and particularly a serious fraud, only unusual
circumstances would warrant a conclusion that it could be
mended”.
Appropriate and fair sanction? 7
• In Toyota South Africa Motors v Radebe (2000 LAC)
•
the court accepted theft and fraud have “always constituted
grounds for dismissal of employees” because of the breach in
the trust relationship” however there “is no invariable rule that
offences including dishonesty should incur the supreme penalty
of dismissal”
• In Edcon (SCA) –
• the only issue was whether the material before the commissioner
was sufficient to prove that the trust relationship between the
employee and the company had been destroyed.
• the company’s only witness could not and did not testify on the
effects of the employee’s conduct on the trust relationship.
• the employer couldn’t simply equate serious misconduct with a
finding that a continued relationship would be intolerable.
Appropriate and fair? final
• Recent approach of courts
- Westonaria Local
Municipality v SALGBC (2010 LC)
• Employer bears the onus to show that the employee was guilty
of the offence, and that the dismissal was fair, and that the trust
relationship between it and the employee has broken down due
to the employee’s conduct
– Mutual Construction Co Tvl v Ntombela (2010 LAC)
• Where an employee has committed a serious fraud one might
reasonably conclude that the relationship of trust between him
and the employer has been destroyed.
• Totality of circumstances must be taken into consideration –
where employee was placed in a position of trust and
responsibility, this role constituted a crucial and fundamental
‘operational requirement’ in the employer’s business.