Archive for the Dismissals 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/

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Termination of employment during Probation period

Posted in Dismissals, Questions and Answers with tags , , on October 30, 2009 by Maggie

Question:

Termination of employment during Probation period – irrespective of duration of probation period: May I terminate an employee with 24 hours notice and with what reasons?

Answer:

An employer does not have to wait for a probation period to have run its course before effecting the dismissal of a probationary employee.  It would therefore, in appropriate cases be permissible to effect the dismissal of a probationary employee during the probation period itself.  Ordinarily a probationary employee may be dismissed for incapacity / poor work performance.  If that is indeed the case, then no less than one week’s notice of termination has to be given to the employee.  If, however, the employee has misconducted him / herself, and is found guilty of serious misconduct, summary termination is permissible.  Such dismissal will, however, have nothing to do with the probationary nature of the employment then.

Care should be taken not to be seen to have dismissed a probationary employee too soon.  The purpose of probation is to give an employer the opportunity to evaluate the employee’s performance before confirming the appointment.  The period allowed for such assessment should therefore be proper and fair in the circumstances.

Photo credit: http://farm3.static.flickr.com/2415/2246558373_4bf0167cd8_m.jpg

Can you evict a dismissed employee off your property?

Posted in Basic rights, Dismissals, Questions and Answers with tags , , on October 26, 2009 by labourlawoffices

In terms of his contract of employment with his employer, Mr Viljoen was provided with accommodation for a nominal rental on his employer, Lebowa Platinum Mines’ Land.  After he was dismissed from his employ, Viljoen remained in occupation beyond the 30 days permitted in terms of the employer’s housing policy, and refused to vacate the premises.  The employer duly instituted proceedings in the High Court for his eviction on the basis that he was “an unlawful occupier” as he no longer had the employer’s express or tacit consent to occupy the premises.

Viljoen opposed proceedings and raised the defence that he was an “occupier” as contemplated in the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) because he was unemployed and the premises were situate on a farm and not in a township as envisaged in Section 2 of ESTA.

Those facts, he contended, excluded the High Court’s jurisdiction to adjudicate the eviction proceedings.  The matter was transferred to the Land Claims Court by agreement between the parties.  The Court ultimately found that Viljoen was an occupier as contemplated in ESTA and that the employer ought therefore to have instituted the eviction proceedings under ESTA and dismissed the application.

The employer appealed against that decision to the Supreme Court of Appeal.  [(Lebowa Platinum Mines Limited v Viljoen) 2009 (3) SA 511].  The employer contended that Viljoen’s right to occupy the premises terminated automatically on his dismissal and that he did not thereafter qualify as an “occupier” as contemplated in ESTA, as ESTA was intended only to protect “poor previously disenfranchised farm workers”, which Viljoen undisputedly was not.

The Court held that the contention that ESTA was intended only to protect “poor previously disenfranchised farm workers” was misconceived.

Although there was obviously a particular class of vulnerable persons which was the legislature’s primary concern when ESTA was conceived, of which Viljoen might not be a member, Courts were nonetheless enjoined to consider the colour-blind provisions of Section 26 (3) of the Constitution when interpreting ESTA.  From the wide wording of such provisions, it hardly seemed inconceivable that, in that exercise, a person falling outside the designated category, but nonetheless possessed of a landowner’s consent or some other legal right, might fall within its purview the Court held.

The relevant time at which Viljoen’s circumstances had to be assessed for purposes of determining whether he was or was not an “occupier” as defined in ESTA was when his lawful occupation ceased, i.e. when the permission or right to occupy was withdrawn or ceased.

In the present case it was found that the employee did not qualify as an occupier during the tenure of his employment.  However, he remained in occupation of the premises with the employer’s consent after termination of such employment; that, at a time when he no longer earned an income and did not use the premises for the purposes precluded in the ESTA definition.  During this period the employee’s occupation of the premises undoubtedly assumed an entirely different character which brought him squarely within the amdit of “occupier”.  It was therefore held that Viljoen was an occupier as contemplated in ESTA and the Court declined to grant a remedy.

Where to go with an individual retrenchment dispute?

Posted in Dismissals, Questions and Answers, Unfair Dismissal with tags , , , on October 8, 2009 by labourlawoffices

The powers of a CCMA or Bargaining Council Commissioner in respect of procedural unfairness in individual operational requirements dismissals became problematic when a Labour Court decision found that the CCMA has jurisdiction only if the dispute relates to substantive fairness.  If procedural fairness is at issue, the Court held the CCMA was deprived of jurisdiction and the matter had to be referred to the Labour Court.

However, a more recent Labour Court decision has decided differently on this issue.  The Court found that the wording of Section 191 (12) of the LRA is clear and a single employee dismissed for operational reasons is free to refer the dispute either to the CCMA or to the Labour Court on whatever procedural and or substantive fairness basis the attack may be mounted.

The CCMA has now also followed the guidance from the most recent Labour Court decision and it follows that an individually retrenched employee can prosecute an unfair dismissal claim in either the CCMA / Bargaining Council or the Labour Court, at his / her discretion.

Legal rights of pregnant women at work

Posted in Basic Conditions of Employment, Dismissals with tags , , , , , on June 15, 2009 by labourlawoffices

Being pregnantLabour legislation affords a pregnant female employee four consecutive months’ unpaid maternity leave, which may commence at any time from 4 weeks before the expected date of birth or from a date from which a medical practitioner or midwife certifies that leave is necessary for the health of the mother or child.  No employee may work for 6 weeks after the birth (whether or not the child is born alive or miscarries), unless a medical practitioner or midwife certifies that it is safe for her to do so.  The only obligation on an employee is that she must notify the employer in writing of the date on which she intends to start maternity leave within 4 weeks of such date or when reasonably practicable.

Pregnant or nursing mothers who choose to return to work are also protected.  Employers may not employ them in work that is hazardous to the health of mother or child, and if the mother is required to do night work, the employer must offer her suitable alternative employment if there is a threat to her health and if reasonably practicable.

The wages of new and expectant mothers on maternity leave are covered by the State in terms of the provisions of the Unemployment Insurance Act.

An employer may not dismiss a female employee in any circumstances merely because she is pregnant.  The dismissal of women on the ground of pregnancy or for a reason related to her pregnancy or intended pregnancy is rendered automatically unfair by the Labour Relations Act, 1995.  The provisions of the Employment Equity Act, 1998 protects a woman from unfair discrimination based on her pregnancy, for example being denied promotion, being forced to take unpaid leave or made to work in conditions that endanger her health or that of her unborn child.  An employer’s refusal to permit an employee to resume employment after she was on maternity leave in terms of any law, collective agreement, or her contract of employment is regarded as a form of dismissal.  An employee who commits serious misconduct before or during her maternity leave may still of course be dismissed for such misconduct.  An employer may not dismiss a pregnant employee because she is physically incapable of doing her work while pregnant, or because she has become physically incapable of doing her work as a result of pregnancy.  So for example a woman who develops lengthy bouts of post-natal depression which renders her incapable of working, may not be dismissed because of the operational requirements of her job.  An employee who does not disclose at the time of appointment that she is pregnant can not be dismissed for “deceiving” her employer about her pregnancy.

An employee who has been unfairly dismissed by reason of her pregnancy or a reason related to her pregnancy will ordinarily be entitled to re-instatement, alternatively compensation up to a maximum of 2 years’ remuneration.  Dismissal by reason of an employee’s pregnancy is regarded as a form of automatically unfair dismissal and is adjudicated on by the Labour Court.  A dismissed employee must first refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration or to a Bargaining Council operating in the industry / sector in which the employee was employed.  If the dispute is not capable of settlement / resolution under conciliation by the CCMA / Bargaining Council the employee is entitled to refer the dispute to the Labour Court for adjudication.

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.