Archive for the Employee misconduct Category

Can an employer defame his employee in a dismissal letter?

Posted in Dismissals, Employee misconduct, Questions and Answers with tags , on March 4, 2010 by labourlawoffices

It is quite routine for an employer to issue an employee with a letter of dismissal when the employment relationship comes to an end at the employer’s initiative. This could relate to either prior misconduct of the employee, incapacity due to poor performance or ill health or even retrenchment. What happens when an employer has held a disciplinary enquiry with an employee and the employee has been found guilty of say fraud and theft? Can the employer now in a letter of dismissal communicate to the employee (and the world out there) the detail of the reasons for the dismissal. On the face of it such reasons and advice would be defamatory of the employee. The employee has after all not been found guilty in a criminal court of such misconduct and may never in future be so convicted.

An employer dictating a dismissal letter containing such prima facie defamatory matter to the secretary of the firm is publishing defamatory matter to a third party. An employer has a moral, social and legal duty to communicate the reasons for an employee’s dismissal to him / her. The publication of the contents of the letter of dismissal to the typist is, however, regarded as a privileged occasion. Publication to the typist of the contents of the letter of dismissal to be typed is publication in the exercise of the duty to inform the employee of the reasons for termination of his employment. It will therefore not constitute defamation.

Photo Credit: http://www.flickr.com/photos/anniebee/92853447/

When does lying under oath cost and employee his job?

Posted in Dismissals, Employee misconduct, Unfair Dismissal with tags , , , , on January 16, 2009 by labourlawoffices

Introduction

In the recently reported Labour Appeal Court case of Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008 ) 29 ILJ 2189 (LAC) the appellant employee was dismissed for various incidents of sexual harassment. A CCMA commissioner found that the employee’s conduct did not amount to sexual harassment as defined in the Code of Good Practice: Dismissal, but that the sexual advances made by him did amount to inappropriate behaviour for a person in his position. The employee had been a convening senior commissioner of the CCMA.

The CCMA held that dismissal was not an appropriate sanction and re-instated the employee subject to a final written warning. The CCMA brought an application to review the award on, inter alia, the ground that the commissioner had committed a gross irregularity in that he had failed to consider and attribute weight to the fact that the employee had given false evidence both at the disciplinary enquiry and in the arbitration proceedings.

Labour Court decision

The Labour Court was unable to determine from the award whether the commissioner had considered the false evidence by the employee, but ruled that the dishonesty of the employee was a highly relevant issue and that, had the commissioner considered it, he would have come to a different conclusion.

The Labour Court accordingly granted the CCMA an order which in effect upheld the employee’s dismissal. The employee then appealed this decision to the Labour Appeal Court. The employee contended that, as the CCMA had not pertinently raised the issue of his dishonesty at the arbitration, the commissioner correctly did not consider the issue and the CCMA could not rely upon it as a gross irregularity. He also contended that, since the Labour Court had correctly held that his giving false evidence under oath was relevant only to the determination of the appropriate relief, the giving of false evidence could not convert an otherwise unfair dismissal into a fair one. There was therefore no basis in law for the Labour Court’s decision to deprive the employee of all relief, which was the effect of the judgement of the Court.

The employee also argued that if the CCMA wanted to avoid an order of re-instatement, it ought to have led evidence to establish that a continued employment relationship would be intolerable.

Labour Appeal Court decision

The Court found that the commissioner had been aware of the position that the employee held with the CCMA and that he had given false evidence. The commissioner ought to have appreciated the importance of the employee’s being a fit and proper person to occupy the position of a convening senior commissioner if he were to be re-instated in this position.

The Court below was therefore correct in concluding that, had the commissioner applied his mind to the effect on his job of the employee’s conduct in giving false evidence, he would not have ordered re-instatement. The Labour Appeal Court found that it was unfair that the employee should be denied any relief. Since his re-instatement was impracticable, it was just and equitable that the employee be awarded compensation equivalent to 12 months’ remuneration.

Although a commissioner is required to give brief reasons for an award in a dismissal dispute, he can be expected to include in such brief reasons those matters or factors which he took into account which are of great significance to or which are critical to one or other of the issues he is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his omission in his reasons of a matter of great significance or relevance to one or more of such issues give rise to an inference that he did not take such matter or factor into account.

In the present matter the employee’s conduct in giving false evidence under oath was so critical to the issue of relief that in the Court’s view, the only explanation for the commissioner’s failure to mention it in his reasons as one of the factors that he took into account is that he did not take it into account. If the commissioner had considered such a critical factor, he definitely would have mentioned this in his award. In the Court’s view the fact that the commissioner did not mention this very critical factor in his award justified the drawing of the inference that he did not take it into account.

Section 193 (2) of the Labour Relations Act, 1995 obliges the Labour Court or an arbitrator to order the employer to re-instate or re-employ an employee whose dismissal it has found to be unfair for lack of a fair reason or whose dismissal it has found to be automatically unfair unless one or more of the situations set out in Section 193 (2) (a) – (d) applies namely:

“Unless –

(a) The employee does not wish to be re-instated or re-employed;

(b) The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) It is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) The dismissal is unfair only because the employer did not follow a fair procedure.”

The situation envisaged in paragraph (b) is where “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable”. It is possible that insofar as the giving of false evidence under oath occurs in the disciplinary enquiry before the dismissal and where it becomes one of the factors that are taken into account in taking the decision to dismiss, it could be said that it is one of the circumstances surrounding the dismissal. However, the same can not be said of a situation where the giving of false evidence only occurs in the arbitration or at the trial subsequent to the dismissal.

The Court went on to caution that its conclusion that the employee’s conduct in giving false evidence under oath in the arbitration rendered it “reasonably impracticable for the employer” to re-instate him did not mean that this will be the conclusion in each case in which as employee is found to have given false evidence under oath in an unfair dismissal matter. Each case will have to be decided on its own merits. The Court concluded that it would not often be the result because it does not follow in many cases that it is reasonably impracticable for an employer to re-instate such employee. It was precisely because the re-instatement of the commissioner was going to mean that he was re-instated to a position in which he had to expect others to respect an oath when he himself had been found to have shown no respect for the same oath, that makes this case unique in this respect.

Fraudulent employee sicknotes

Posted in Employee misconduct, Questions and Answers with tags , on October 12, 2007 by labourlawoffices

Question

I have a question regarding a disciplinary hearing for an employee who has submitted numerous sick notes that have been fraudulently issued and signed by a medical institution.  As we became suspicious about the notes not reflecting any telephone or reference number and also no doctor’s name and practice number, an enquiry was made to the medical institution as to the authenticity of the documents. They verbally confirmed that the documents submitted were not valid sick notes from their institution and neither did the signatures match those of the doctors employed there. A written confirmation to this effect has been requested.  I need to ascertain if such fraudulent action can be regarded as a serious infringement and whether the employee can be summarily dismissed because of this without any oral and/or written warnings?

Answer

The question is whether or not the fraudulent misrepresentation by the employee has caused a breakdown in the relationship of trust between the employee and his employer.  From the facts furnished, it seems that there is a pattern of repeated fraudulent misrepresentation by the employee which has potential to cause, or has already caused, damage to the employer. Dishonest behaviour by an employee and repeatedly so, as in this instance, may be treated as very serious misconduct, which goes to the heart of the employment relationship and justifies a summary dismissal.  In order to observe the principle of fairness, theemployee should be charged with gross misconduct on the basis that he repeatedly misrepresented and presented fraudulent documents to the employer and he must be given an opportunity to defend himself against the allegations.If the misconduct is proven at the disciplinary hearing, dismissal will be a suitable outcome. Previous warnings are not a requirement where an employee’sconduct has caused the irretrievable breakdown in the trust relationship between the parties. 

Fraud commited in awarding tenders

Posted in Employee misconduct with tags , on March 24, 2007 by labourlawoffices
By Sello E. Xama of JD VERSTER LABOUR LAW OFFICES
Introduction

With the advent, establishment and development of the democratic dispensation in South Africa came the development of the Broad Based Black Economic Empowerment strategy, policies and processes which are aimed at addressing and achieving various objectives. Against this background, companies and institutions have geared themselves up and strategically positioned themselves to provide goods and services to the government. 

Government procurement has been identified as one of the crucial tools that could be used to achieve the socio-economic redress as well as to empower the historically disadvantaged. A government public tender is a means and a vehicle of engaging in public procurement. It is the most effective way of complying with the principles of fairness, equity, transparency, competitiveness and cost effectiveness. 

The Supreme Court decision 

Notwithstanding these noble principles, media reports are abound with allegations of fraud committed during tender processes. The Supreme Court of Appeal in the matter of Minister of Finance and others v Gore NO was called upon to determine and pronounce on whether or not the national and provincial governments can be held vicariously liable for the fraudulent conduct of its employees committed during a tendering process which conduct caused pure economic loss to the party who had lost out on a government tender. 

A brief synopsis of the relevant facts are as follows. The Cape Provincial Administration (“CPA”) was experiencing massive corruption and fraud in registration and payments of pension grants. Company X, concluded an exclusive association with a foreign based company (“Y”)  to secure the sole rights to import and distribute a new fingerprint identitification and verification technology. Company Y was the only Company that provided the said technology in the world. 

Company X helped the CPA to devise tender requirements. Company X subsequently held discussions and successful demonstrations and tests of the said technology with, inter alia, the CPA’s Deputy Director for Social Security (“Z”). 

A tender was advertised and about 13 entities including company X and company Q submitted tenders. The tender awarding committee chaired by the CPA’s deputy director, Z, recommended that company Q, which did not have previous experience in information technology, be awarded the tender. 

It was established that Z fraudulently and corruptly concluded an agreement with company Q before the tender was advertised; prepared company Q’s tender  documents on CPA’s premises; manipulated the award process by concealment, distortions and lies; and secured a job with company Q before the tender was awarded. 

Company X issued summons as a result of the fraudulent conduct committed by Z. The national and provincial governments raised the following defences; that the plaintiff’s claim had prescribed; that they were not vicariously liable for the conduct of its employee; that company X would not have secured the contract and thus had suffered no damages; and that a public body was immune from liability for fraud committed in the course of a tender process.  

With regard to the defence of prescription the Court found that company X had no more than a suspicion that fraud had been committed. The Court restated the principle that prescription begins to run when the creditor has knowledge of the minimum facts from which the debt arose. The Court held that a mere opinion or supposition was not enough to sustain a defence of prescription. What was required was a justified belief or conviction that can be inferred from attendant circumstances. 

The Court applied a two pronged test and held, with regard to the national and provincial governments’ defence that they were not vicariously liable for the deliberate dishonest conduct of their employees, that while the fraudulent conduct was subjectively committed solely for the employee’s own in interests and purposes, objectively there was a sufficient close link between the national and provincial governments’ business. It concluded that although the conduct of Z defrauded both company X and the national and provincial governments, his actions were tightly aligned to the functions he was employed to the perform.  

The Court further restated that the question of causation is one of fact. On the facts before it, it held that it was a matter of common sense based on the practical way in which an ordinary person’s mind works against the background of everyday life experience that company X, without the fraud, would have been the successful tenderer. 

With regard to the national and provincial governments’ contention that generally our law does not extend a delictual claim to an unsuccessful tenderer against a government department for losses suffered in the course of a tender process, including where the loss was inflicted by fraud, it held that the fact that the employee’s conduct was deliberate and dishonest dictated that liability should follow in damages even where a public tender was being awarded.

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