An article concerning the employment relationship in the BusinessDay supplement “Business Law & Tax Review” published on Monday 12 April 2010 confirms that some large employers still adopt a criminal law approach when dealing with ordinary transgressions by employees.

“Double-edged sword in appeal” on page 7 discusses a Labour Court review of a CCMA arbitration award.  The employer “charged” and found an employee “guilty” of unauthorised absence from work and insolence.  By no stretch of the imagination could those transgressions ever be crimes but some employers persist in treating them as being criminal in nature by “charging” employees as if they were criminals.  Not only is such conduct by employers insulting but it is also unacceptable as it impugns the dignity of the employee which in itself could have serious consequences.

This was pointed out in the article on page 6 of the Supplement: “Court hits at employee’s treatment: Firm’s constructive dismissal of member with mental problems punished heavily” where the Labour Appeal Court upheld an award of 24 months salary as just and equitable compensation for an employee whose dignity was impugned.   See New Way Motor & Diesel Engineering (Pty) Ltd v Marsland [2009] 12 BLLR 1181 (LAC).   The earlier Labourt Court judgment which was upheld is Marsland v New Way Motor & Diesel Engineering (Pty) Ltd [2008] 11 BLLR 169 (LC).

It also needs to be pointed out that the judge in the Labour Court used the word “sanction” in the context of employment law and drew a comparison with criminal law in discussing the rights of employers to impose a more severe “sanction” when an employee appeals internally against any disciplinary finding.  The Labour Court case being discussed was Rennies Distribution Services (Pty) Ltd v Bierman.

Not only is there no reference to the word “sanction” in labour legislation but its continued use by judges tends to suggest that employers have some god-given right to behave like “masters” in dealing with “servants”.  There is a failure to appreciate that the employment relationship treats both parties as equals.  If employees engage in any type of criminal conduct, such as theft or assault, then employers should report the matter to the police and allow the law to take its proper course.  That does not deprive employers of the right to treat the transgression as a fair reason to terminate employment provided a fair procedure is followed (the right to be heard before the employer takes a final decision) and the employer is able to prove that such conduct seriously damaged or destroyed the trust relationship and made a continued working relationship intolerable.

Employers are looking for trouble when they treat such transgressions as crimes and “charge” and find employees “guilty” of anything.

It is also necessary to comment on another article entitled “Validity of medical notes” on page 5 of the Supplement where reference is made to Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] 8 BLLR 699 (SCA).   It is incorrectly contended in the article that “(F)airness and fairness alone is the yardstick in labour law”.  Lawfulness or wrongfulness is just as important and will usually result in unfairness.  In other words the termination of an employment contract without notice by either party, in the absence of any material breach by the other party, is unlawful or wrongful and can provide a legitimate cause of legal action in the Labour Court or the civil courts.  Claims based on such causes, unlike causes of action that flow from statutes such as the Basic Conditions of Employment Act 75 of 1997 or the Labour Relations Act 66 of 1995, do not need to be referred to the CCMA or any Bargaining Council before being adjudicated.  The prescription period for unlawfulness is 3 years and not 30 days as provided in the Labour Relations Act.