Can an Employee be dismissed on suspicion of misconduct?

There is always contention as to whether or not an Employer has followed the correct procedure and whether or not there was a fair reason for dismissing an Employee. In general there are the two fundamental legs to a dismissal dispute – procedure and substance. In Labour court and CCMA matters the onus is always on the Employer to prove the fairness of a dismissal. This is determined on a balance of probabilities which is based on the circumstances of the matter.

Section 188 of The Labour Relations Act deals with dismissals and permits an Employer to dismiss an employee for misconduct. What is unclear though is “what constitutes misconduct in the clearest sense” and “what offences may constitute misconduct”. The question then arises whether or not an Employer can dismiss and Employee because he or she suspects the employee have committed misconduct. The leading case of Algorax (Pty) Ltd v Chemical Industrial Workers Union and Another {1995} 10 BLLR 1 (LAC) says yes, provided that the suspicion is bona fide and reasonable. The more recent case of Senzeni Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA 4/11) {2013} ZALAC says no, stating that “suspicion, however strong or reasonable as it may appear to be, remains a suspicion and does not constitute misconduct”.

The facts of the case:

The Employee was employed by Shoprite Checkers as a cashier. One day the Employee rang up certain items for a customer who was a car guard outside the shop. The customer was short on money and returned 10 minutes later to pay the difference. The items were rung up at the kiosk as opposed to the proper till as required. The assistant manager of the store watched the Employee ring the items up and overheard the Employee and customer talking during this process. For a number of reasons including this occasion, the Employee was suspicious of the Employees conduct.

The Employee was called to a disciplinary enquiry and charged with gross misconduct in that she had attempted to under ring certain items while attending to her duties as cashier. The Employee was found guilty by the chairperson and summarily dismissed. The Employee referred the matter to the CCMA and when the matter was Arbitrated, the Employee claimed that the alleged misconduct was based only on the Employers suspicion and was not bona fide or reasonable. The CCMA found in favour of the Employee and concluded that the dismissal was therefore substantively unfair. The Employer applied for the decision to be reviewed and was successful on the basis that a full and proper disciplinary hearing was done by the Employer, and the Labour court sent the dispute back to the CCMA for Arbitration once again.

Before the matter was Arbitrated once again the Employee appealed the Labour court’s decision claiming that the Labour court had dealt with the procedural issues of the dispute as opposed to the substantive issues and had therefore misdirected itself and erred. On appeal the Employee claimed that the only issue to be determined was whether or not there was misconduct and whether or not this could be proved. The Labour Appeal court found that the Employer had only a suspicion that the Employee had committed misconduct and the allegations of misconduct had not been proved by the Employer on a balance of probabilities. The appeal was therefore upheld and the Employee’s dismissal was once again found to be substantively unfair.

Conclusion:

Employers and chairpersons must be careful when dismissing an Employee and must ensure that they have sufficient proof and evidence to substantiate misconduct before making a decision to discipline or dismiss an employee. An Employer must therefore have a bona fide and reasonable suspicion that an Employee has committed an act of misconduct, and that suspicion must be backed up with solid evidence.

Warren Sundstrom

Posted in Labour Law permalink

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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