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INDIVIDUAL DISMISSAL. 1.1 Appropriate sanction Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC)  security guard dismissed after being found in possession.

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Presentation on theme: "INDIVIDUAL DISMISSAL. 1.1 Appropriate sanction Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC)  security guard dismissed after being found in possession."— Presentation transcript:


2 1.1 Appropriate sanction Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC)  security guard dismissed after being found in possession of scrap metal he had removed without authority from factory  contradictory explanations given by employee  disciplinary code provided for both final warning and dismissal for theft  employee claimed that as ‘petty theft’ and in light of long service (25 yrs) and clean disciplinary record, dismissal too harsh a sanction Court held that:  in deciding on appropriate sanction commissioner must consider all relevant circumstances  role of the trust relationship remains predominant  dismissal for theft based on operational requirements  long service cannot be mitigating factor if employee guilty of theft  distinction between theft and “petty theft” artificial and disciplinary procedure that draws distinctions between degrees of theft is impractical  appellant breached relationship of trust and dismissal operationally justified and fair

3 Timothy v Nampak Corrugated Containers (Pty) Ltd [2010] 8 BLLR 830 (LAC)  employee dismissed for impersonating an attorney and bringing employer’s name into disrepute  no remorse shown and persistent denial of wrongdoing Court held that:  purpose of progressive discipline to ensure that employee reintegrated into workplace, where employment relationship can be restored  where dishonest conduct and denial of wrongdoing progressive discipline inappropriate Boss Logistics v Phopi & others [2010] 5 BLLR 525 (LC)  senior employee dismissed for poor work performance and misconduct after misrepresenting qualifications and experience Court held that:  if an employee misrepresents competence no need to provide guidance, counselling or opportunity to improve  senior employees should not be counselled and should be able to gauge their performance  Commissioner not to second-guess employer’s performance standards  dismissal substantively fair

4 Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA)  employee dismissed for dishonesty after failing to reveal that company car damaged in accident  employer claimed that trust relationship irreparably damaged  question whether material before CCMA sufficient proof of destroyed relationship of trust  employer’s evidence of the history of the matter and policy of intolerance of dishonesty insufficient Court held that:  evidence required of effect of conduct on the trust relationship  no evidence provided of nature and scope of her duties, her place in the hierarchy, the importance of trust in the position that she held  dismissal substantively unfair Mutual Construction Company Tvl (Pty) Ltd v Ntombela NO & others [2010] 5 BLLR 513 (LAC)  administrative clerk dismissed for fraudulently claiming 81 hours worked by himself.  claimed that disciplinary hearing procedurally unfair because employee not shown altered time sheets and disciplinary notice did not specify fraudulent entries Court held that:  employer not expected to draft charge sheets according to requirements of criminal courts.  employee understood nature and import of charges  charges clarified in de novo arbitration hearing

5 2.1 Dismissal of labour broker employees Sindane v Prestige Cleaning Services [2009] 12 BLLR 1249 (LC)  applicant formerly employed by respondent in terms of a ‘fixed term eventuality contract of employment’ - dismissed  contract stipulated that upon termination of respondent’s contract with client to whom employee rendered services employee’s employment with respondent would terminate Court held that:  termination may not constitute dismissal, when act of employer is not the proximate cause of the dismissal (eg expiry of fixed-term contract)  applicant not ‘dismissed’ as termination of employment contract triggered by third party and not by employer

6  employee sent offensive e-mail to colleague and labour broker’s client insisted that he be removed from its premises  broker convened disciplinary hearing and issued final written warning  client refused to permit employee to return to its premises  broker retrenched employee after consultation process Court held that:  contractual provision that enables labour broker to withdraw employee placed with client contrary to public policy and in breach of constitutional right to fair labour practices  labour brokers and clients ‘not at liberty to structure their contractual relationships in a way that would effectively treat employees as commodities to be passed on and traded at the whim and fancies of the client’  broker has right to approach court for recourse against client who refuses placement of employee

7 2.2 Desertion Jammin Retail (Pty) Ltd v Mokwane & others [2010] 4 BLLR 404 (LC)  contract of employment provided that it would automatically terminate if employee absent from work without permission for more than five consecutive days  employee dismissed after unauthorised absence from work Court held that:  private sector employer to grant deserters hearings before dismissing them if their whereabouts are known  employer knew employee’s home address and made no attempt to contact her  dismissal substantively fair but procedurally unfair because employee not given hearing before dismissal

8 Samancor Tubatse Ferrochrome v MEIBC & others [2010] 8 BLLR 824 (LAC)  employee dismissed after being held in police custody for 150 days  dismissed for “operational incapacity” as he was physically unable to tender his services Court held that:  incapacity not confined to ill health, injury or poor work performance and includes inability to work through any incapacitating cause  fairness of dismissal depends on facts  employer had no idea how long the employee would be incarcerated, and there was a commercial need to fill employee’s position.  dismissal substantively fair

9 Jordaan v CCMA (unreported PA 1/09 11/5/ 2010 LAC)  employee resigned after refusing to sign restraint of trade and claimed constructive dismissal Court held that:  2 stage enquiry – i) whether constructive dismissal and ii) whether dismissal fair  not independent enquiries and same facts relevant to both  intolerability is an objective enquiry and employee must show that no reasonable option but to resign  employer had legitimate interest in asking for restraint to be signed and no constructive dismissal found Strategic Liquor Services v Mvumbi NO & others [2009] 9 BLLR 847 (CC)  employee given choice between resigning and placed on “poor work performance training programme”  employee chose to resign claiming no option as going to get dismissed regardless Court held that  test for constructive dismissal is not whether employee has choice of resigning or remaining, but whether employer has made continued employment intolerable

10 Chabeli v CCMA & others [2010] 4 BLLR 389 (LC) Court held that:  objective assessment of the employer’s conduct to be assessed in totality to assess intolerability  court should not fragment the employee’s complaints and conduct of employer to be considered as a whole in assessing whether its effect, judged reasonably and sensibly, was such that the employee could not be expected to put up with it

11 South African Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA)  employee dismissed and after pursuing remedies under LRA reached settlement agreement with employer  employee claimed damages for breach of employment arising out of his unfair dismissal  court considered whether High Court has jurisdiction to determine claim  comprehensive unfair dismissal provisions do not provide for importation of statutory rights into employment contract  when employees subject to and protected by LRA their employment contracts are not subject to an implied term incorporating the statutory right to fair labour practices and fair dismissal  mechanical duplication of common law and statutory rights flies in the face of legislative vision of a comprehensive labour law framework

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